Crenshaw v. Sunham Home Fashions, LLC

          MEMORANDUM DECISION AND ORDER RE PLAINTIFF’S MOTION TO REMAND (DOC. 7)

          LAWRENCE J. O’NEILL, UNITED STATES CHIEF DISTRICT JUDGE.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On April 28, 2016, Plaintiff John Crenshaw (“Plaintiff”) filed a complaint in the Superior Court of California for the County of Fresno against Defendants Sunham Home Fashions, LLC (“Sunham”), Kam Hing Enterprises, Inc. (“KHE”), and Macy’s, Inc. (“Defendant”) (collectively, “Defendants”), and Does 1-50, for the injuries he sustained after he slipped and fell while using a mat he had purchased at a Macy’s retail store. Doc. 3, Ex. A, Complaint (“Compl.”).

         In an attempt to remove this matter to federal court, on May 31, 2016, Defendant filed a civil cover sheet in this Court, which he labeled a “Notice of Removal.” Doc. 8 at 2. On June 1, 2016, the Clerk of Court notified Defendant that the filing was defective. Doc. 2 (“CLERK'S NOTICE to Attorney Alexandra Seibert re Notice of Removal: Your filing is entitled Notice of Removal, however, the actual document attached is a Civil Cover Sheet. Please file your Notice of Removal.”). In response, Defendant filed a Notice of Removal of the case to this Court on May 3, 2016, asserting jurisdiction exists because the parties are completely diverse and Plaintiff seeks more than $75, 000 in damages. See Doc. 3 at 2; 28 U.S.C. §§ 1332, 1441; Doc. 3, Ex. B. Defendant asserts that it is a New York corporation with its principal place of business in Cincinnati, Ohio; Sunham is a New York corporation with its headquarters and principal place of business in New York City, New York; and KHE is a New Jersey corporation, which does not have its principal place of business or headquarters in California. Doc. 3 at 2.

         On June 13, 2016, Plaintiff moved to remand this case to the Superior Court. Doc. 7 at 1. Plaintiff argues that (1) Defendant’s notice of removal was untimely; (2) all Defendants have not consented to removal; and (3) complete diversity of all parties is not evident on the face of the complaint. Id. Plaintiff therefore moves for fees under 28 U.S.C. § 1447(c). Defendant contends its removal was proper. See Doc. 12 at 6.

         The Court took the matter under submission on the papers pursuant to Local Rule 230(g). Doc. 17. For the following reasons, the Court DENIES Plaintiff’s motion to remand and corresponding request for attorney’s fees.

         II. STANDARD OF DECISION

         Under 28 U.S.C. § 1441(a), a defendant may remove an action to federal court if the district court has original jurisdiction. Hunter v. Phillip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. 28 U.S.C. § 1447(c). The removal statute is strictly construed in favor of remand and against removal. Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 698 (9th Cir. 2005). A defendant always has the burden of establishing that removal is proper. California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004). Federal jurisdiction therefore must be rejected if there is any doubt as to the right of removal in the first instance. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

         III. DISCUSSION

         A. Defendant’s Removal Was Timely.

         Plaintiff bases his motion to remand primarily on the ground that Defendant’s removal notice was untimely filed and therefore failed to meet the requirements of 28 U.S.C. § 1446(b). Doc. 7 at 4. Plaintiff does not dispute that Defendant’s removal, if timely, would have been proper. Doc. 14 at 4.

         Plaintiff claims that Defendant’s motion was untimely filed because Defendant was served with the complaint on April 29, 2016, the 30-day removal deadline provided by 28 U.S.C. § 1446(b) fell on June 1, 2016, and Defendant filed a sufficient notice of removal on June 2, 2016. Doc. 7 at 3.

         Section 1446(b)(3) provides:

Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may ...