United States District Court, C.D. California
ORDER REMANDING ACTION
FERNANDO M. OLGUIN United States District Judge.
13, 2016, Maria Yesenia Joaquin (“plaintiff”)
filed a Complaint in the Los Angeles County Superior Court
against Victoria’s Secret Stores, LLC
(“VSS” or “defendant”) and Does 1
through 100. (See Notice of Removal
(“NOR”) at ¶ 1 & Exhibit A
(“Complaint”)). On July 5, 2016, defendant
removed that action on diversity jurisdiction grounds
pursuant to 28 U.S.C. § 1332. (See NOR at
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute[.]”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377, 114 S.Ct. 1673, 1675 (1994). The courts are
presumed to lack jurisdiction unless the contrary appears
affirmatively from the record. See DaimlerChrysler Corp.
v. Cuno, 547 U.S. 332, 342 n. 3, 126 S.Ct. 1854, 1861
(2006). Federal courts have a duty to examine jurisdiction
sua sponte before proceeding to the merits of a
case, see Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 583, 119 S.Ct. 1563, 1569 (1999), “even in the
absence of a challenge from any party.” Arbaugh v.
Y&H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 1244
right of removal is entirely a creature of statute and a suit
commenced in a state court must remain there until cause is
shown for its transfer under some act of Congress.”
Syngenta Crop Protection, Inc. v. Henson, 537 U.S.
28, 32, 123 S.Ct. 366, 369 (2002) (internal quotation marks
omitted). Where Congress has acted to create a right of
removal, those statutes, unless otherwise stated, are
strictly construed against removal
jurisdiction. See id. Unless otherwise
expressly provided by Congress, “any civil action
brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed by
the defendant or the defendants, to the district
court[.]” 28 U.S.C. § 1441(a); see Dennis v.
Hart, 724 F.3d 1249, 1252 (9th Cir. 2013) (same). A
removing defendant bears the burden of establishing that
removal is proper. See Abrego Abrego v. The Dow Chem.
Co., 443 F.3d 676, 684 (9th Cir. 2006) (per
curiam) (noting the “longstanding, near-canonical
rule that the burden on removal rests with the removing
defendant”); Gaus v. Miles, Inc., 980 F.2d
564, 566 (9th Cir. 1992) (“The strong presumption
against removal jurisdiction means that the defendant always
has the burden of establishing that removal is
proper.”) (internal quotation marks omitted). Moreover,
if there is any doubt regarding the existence of subject
matter jurisdiction, the court must resolve those doubts in
favor of remanding the action to state court. See
Gaus, 980 F.2d at 566 (“Federal jurisdiction must
be rejected if there is any doubt as to the right of removal
in the first instance.”).
the plain terms of § 1441(a), in order properly to
remove [an] action pursuant to that provision, [the removing
defendant] must demonstrate that original subject-matter
jurisdiction lies in the federal courts.” Syngenta
Crop Protection, 537 U.S. at 33, 123 S.Ct. at 370.
Failure to do so requires that the case be remanded, as
“[s]ubject matter jurisdiction may not be waived, and.
. . the district court must remand if it lacks
jurisdiction.” Kelton Arms Condo. Owners
Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d 1190,
1192 (9th Cir. 2003). Indeed, “[i]f 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); see Emrich v.
Touche Ross & Co., 846 F.2d 1190, 1194 n. 2 (9th
Cir. 1988) (“It is elementary that the subject matter
jurisdiction of the district court is not a waivable matter
and may be raised at anytime by one of the parties, by motion
or in the responsive pleadings, or sua sponte by the
trial or reviewing court.”); Washington v. United
Parcel Serv., Inc., 2009 WL 1519894, *1 (C.D. Cal. 2009)
(a district court may remand an action where the court finds
that it lacks subject matter jurisdiction either by motion or
court’s review of the NOR and the attached state court
Complaint makes clear that this court does not have subject
matter jurisdiction over the instant matter. See 28
U.S.C. § 1441(a); Caterpillar, Inc. v.
Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429 (1987)
(“Only state-court actions that originally could have
been filed in federal court may be removed to federal court
by the defendant.”) (footnote omitted). In other words,
plaintiff could not have originally brought this action in
federal court, as plaintiff does not competently allege facts
supplying diversity jurisdiction. See 28 U.S.C.
federal subject matter jurisdiction is predicated on
diversity of citizenship pursuant to 28 U.S.C. 1332(a),
complete diversity must exist between the opposing parties.
See Caterpillar Inc. v. Lewis, 519 U.S. 61, 68, 117
S.Ct. 467, 472 (1996) (stating that the diversity
jurisdiction statute “applies only to cases in which
the citizenship of each plaintiff is diverse from the
citizenship of each defendant”). Defendant contends
that complete diversity exists because plaintiff is a citizen
of California, (see NOR at ¶ 7; Complaint at
¶ 1), and defendant is not a citizen of California
because it “is neither incorporated in California nor
does it have a principal place of business in
California.” (NOR at ¶ 9). However, defendant
improperly relies on the standard applicable to corporations
despite the fact that defendant is a limited liability
company. (See id.) (“VSS is a limited
liability companies (“LLCs”) are treated like
partnerships rather than corporations for the purpose of
determining citizenship, and are deemed “a citizen of
every state of which its owners/members are citizens.”
Johnson v. Columbia Props. Anchorage, LP, 437 F.3d
894, 899 (9th Cir. 2006); see Grupo Dataflux v. Atlas
Global Grp., L.P., 541 U.S. 567, 569, 124 S.Ct. 1920,
1923 (2004) (“[A] partnership . . . is a citizen of
each State or foreign country of which any of its partners is
a citizen.”). “There is no such thing as ‘a
[state name] limited partnership’ for purposes of . . .
diversity jurisdiction. There are only partners, each of
which has one or more citizenships.” Hart v.
Terminex Int’l, 336 F.3d 541, 544 (7th Cir. 2003)
(internal quotation marks omitted). Moreover, “[a]n
LLC’s principal place of business [or] state of
organization is irrelevant” for purposes of diversity
jurisdiction. See Buschman v. Anesthesia Business
Consultants LLC, 42 F.Supp.3d 1244, 1248 (N.D. Cal.
2014); Tele Munchen Fernseh GMBH & Co
Produktionsgesellschaft v. Alliance Atlantis Int’l
Distribution, LLC, 2013 WL 6055328, *4 (C.D. Cal. 2013)
(“As a limited liability company, [defendant]’s
principal place of business is irrelevant for purposes of
diversity jurisdiction.”). If a member of an LLC is a
corporation, then the state of that member’s
incorporation and its principal place of business must be
has failed to set forth the citizenship of each of its owners
and/or partners. (See, generally, NOR). In
short, it has failed to show that complete diversity of the
parties exists. Given that any doubt regarding the existence
of subject matter jurisdiction must be resolved in favor of
remanding the action to state court, see Gaus, 980
F.2d at 566, the court is not persuaded, under the
circumstances here, that defendant has met its burden.
Therefore, there is no basis for diversity jurisdiction.
order is not intended . Nor is it intended to be included in
or submitted to any online service such as Westlaw or
on the foregoing, IT IS ORDERED that:
above-captioned action shall be remanded to the Superior
Court of the State of California for the County of Los
Angeles, 111 North Hill St., Los Angeles, CA 90012, for lack
of subject matter jurisdiction pursuant to 28 U.S.C. §
Clerk shall send a certified copy of this Order ...