United States District Court, C.D. California
Kenneth D. Malamed
First Western Capital Management Company
Present: Honorable JOHN A. KRONSTADT, UNITED STATES DISTRICT
CIVIL MINUTES - GENERAL
(IN CHAMBERS) ORDER RE MOTION TO REMAND (DKT. 12) AND
DEFENDANT'S MOTION TO DISMISS OR TO TRANSFER PURSUANT TO
FED. R. CIV. P. 12(B)(3) OR 28 U.S.C. § 1404. (DKT. 9)
D. Malamed (“Plaintiff”) brought this action in
the Los Angeles Superior Court on September 9, 2016. The
Complaint presents claims against First Western Capital
Management Company (“FWCM”) and seeks certain
declaratory relief. Dkt. 1-1. Plaintiff filed a First Amended
Complaint on October 19, 2016; it added claims for wrongful
termination in violation of public policy, failure to pay all
wages upon termination and failure to pay reimbursement.
First Amended Complaint (“FAC”), Dkt. 12-4, Ex.
removed the action on October 18, 2016, based on diversity
jurisdiction. 28 U.S.C. §1441. Notice of Removal, Dkt.
1. On October 26, 2016, FWCM filed a motion to dismiss or to
transfer the action to the District of Colorado. Fed.R.Civ.P.
12(B)(3); 28 U.S.C. § 1404. Dkt. 9. On November 8, 2016,
Plaintiff filed a Motion to Remand. Dkt. 12.
hearing on all of the motions was conducted on December 12,
2016, and they were taken under submission. Dkt. 22. For the
reasons stated in this Order, the motion to remand is
GRANTED. Therefore, the remaining motions
are not addressed because there is no jurisdiction to do so.
founded and was the principal owner of Financial Management
Advisors, LLC (“FMA”). FAC ¶ 6. FMA was a
Los Angeles-based investment advisory firm at that time.
Id. In 2008, Plaintiff sold FMA to First Western
Financial, Inc. (“First Western Financial”),
which is a bank based in Colorado. Id. ¶ 7.
First Western Financial formed a subsidiary -- First Western
Capital Management Company (“FWCM”) -- in
connection with the acquisition of FMA. Id. After
the acquisition, FMA was dissolved, with its operations
continued under FWCM. Id. As part of the
acquisition, Plaintiff became the Vice Chairman, Chief
Investment Officer and Portfolio Manager of FWCM.
Id. ¶ 8. Subsequently, he became a member of
its Investment Policy Committee and Board of Directors.
Id. In 2013, Plaintiff entered into a new contract
with FWCM (the “2013 Agreement”). Id.
¶ 24. Pursuant to that agreement, Plaintiff agreed to
continue to work with FWCM for a new three-year term.
the term of the 2013 Agreement, issues arose between
Plaintiff and FWCM. They included disagreements during 2016
as to the proposed sale of FWCM by First Western Financial.
Id. ¶¶ 26-34. In June 2016, FWCM offered
Plaintiff a new employment agreement. Id. ¶ 29.
He declined to sign it due to his concern over the proposed
sale of FWCM. Id. ¶ 31. On August 2, 2016, FWCM
and First Western Financial brought an action against
Plaintiff in Colorado (the “Colorado Action”).
Id. ¶ 32. On September 1, 2016, after the 2013
Agreement had expired, FWCM and First Western Financial
terminated Plaintiff's employment, which was ongoing, and
served him with the complaint in the Colorado Action.
Id. As noted, Plaintiff then brought this action in
the Los Angeles Superior Court presenting claims arising from
his termination as well as his treatment by FWCM during his
employment. Id. ¶¶ 34-36.
Motion to Remand
motion to remand is the procedural means to challenge the
removal of an action. Moore-Thomas v. Alaska Airlines,
Inc., 553 F.3d 1241, 1244 (9th Cir. 2009). Generally, a
case may be removed only if it could have been brought
initially as a federal action. 28 U.S.C. § 1441(a).
Federal courts have diversity jurisdiction where the amount
in controversy exceeds $75, 000 and the action is between
parties who are citizens of different states. 28 U.S.C.
§§ 1332, 1441. Therefore, diversity jurisdiction
can be the basis for the removal of an action. “If a
case is improperly removed, the federal court must remand the
action because it has no subject-matter jurisdiction to
decide the case.” ARCO Envtl. Remediation, LLC v.
Dep't of Health & Envtl. Quality of Mont., 213
F.3d 1108, 1113 (9th Cir. 2000).
removal statute is to be strictly construed. Consequently,
any doubt about whether an action was properly removed is to
be resolved in favor of remand. Gaus v. Miles, Inc.,
980 F.2d 564, 566 (9th Cir. 1992). Under this standard, a
removing party has the burden of establishing that removal
was proper. Id.
corporation is a citizen of the state in which it is
incorporated and the one in which its principal place of
business is located. 28 U.S.C. § 1332(c). Its
“principal place of business” refers “to
the place where a corporation's officers direct, control,
and coordinate the corporation's activities”