Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Malamed v. First Western Capital Management Co.

United States District Court, C.D. California

February 24, 2017

Kenneth D. Malamed
v.
First Western Capital Management Company

          Present: Honorable JOHN A. KRONSTADT, UNITED STATES DISTRICT JUDGE

          CIVIL MINUTES - GENERAL

         Proceedings: (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) JS-6: Remanded

         I. Introduction

         Kenneth 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. F.

         FWCM 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.

         A 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.

         II. Background

         Plaintiff 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.

         During 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.

         III. Motion to Remand

         A. Legal Standards

         A 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).

         The 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.

         A 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” ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.