United States District Court, C.D. California
Present: The Honorable PERCY ANDERSON, UNITED STATES DISTRICT
CIVIL MINUTES - GENERAL
CHAMBERS - COURT ORDER
the Court is a Notice of Removal filed by defendant ESPN
Productions, Inc. (“ESPN”). In its Notice of
Removal, ESPN asserts that this Court has jurisdiction over
the action brought against it and co-defendants Mark Gross
and Jamie Reynolds by plaintiff David Bryant
(“Plaintiff”) based on the Court's diversity
jurisdiction. See 28 U.S.C. § 1332.
courts are courts of limited jurisdiction, having subject
matter jurisdiction only over matters authorized by the
Constitution and Congress. See, e.g., Kokkonen
v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct.
1673, 1675, 128 L.Ed.2d 391 (1994). A suit filed in state
court may be removed to federal court if the federal court
would have had original jurisdiction over the suit. 28 U.S.C.
§ 1441(a). A removed action must be remanded to state
court if the federal court lacks subject matter jurisdiction.
28 U.S.C. § 1447(c). “The burden of establishing
federal jurisdiction is on the party seeking removal, and the
removal statute is strictly construed against removal
jurisdiction.” Prize Frize, Inc. v. Matrix (U.S.)
Inc., 167 F.3d 1261, 1265 (9th Cir. 1999).
“Federal jurisdiction 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).
attempting to invoke this Court's diversity jurisdiction,
Defendant must prove that there is complete diversity of
citizenship between the parties and that the amount in
controversy exceeds $75, 000. 28 U.S.C. § 1332. To
establish citizenship for diversity purposes, a natural
person must be a citizen of the United States and be
domiciled in a particular state. Kantor v. Wellesley
Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir. 1983).
Persons are domiciled in the places they reside with the
intent to remain or to which they intend to return. See
Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th
Cir. 2001). “A person residing in a given state is not
necessarily domiciled there, and thus is not necessarily a
citizen of that state.” Id. For the purposes
of diversity jurisdiction, a corporation is a citizen of any
state where it is incorporated and of the state where it has
its principal place of business. 28 U.S.C. § 1332(c);
see also Indus. Tectonics, Inc. v. Aero Alloy, 912
F.2d 1090, 1092 (9th Cir. 1990).
support of its allegations that the Court possesses diversity
jurisdiction, the Notice of Removal alleges: “Upon
information and belief, Plaintiff is and at all material
times was a citizen and resident of the State of
California.” (Notice of Removal ¶ 8.) The Notice
of Removal additionally alleges the co-defendants Mark Gross
and Jamie Reynolds are “resident[s] of and ][are]
domiciled in the State of Connecticut” and are
therefore citizens of Connecticut. (Notice of Removal
¶¶ 11-12.) The Notice of Removal's allegations,
alleged on information and belief, are insufficient to
establish the citizenship of Plaintiff, Mr. Gross, or Mr.
Reynolds for purposes of the Court's diversity
jurisdiction. “Absent unusual circumstances, a party
seeking to invoke diversity jurisdiction should be able to
allege affirmatively the actual citizenship of the relevant
parties.” Kanter, 265 F.3d at 857;
Bradford v. Mitchell Bros. Truck Lines, 217 F.Supp.
525, 527 (N.D. Cal. 1963) (“A petition [for removal]
alleging diversity of citizenship upon information and belief
is insufficient.”). As a result, Defendants'
allegations are insufficient to invoke this Court's
addition to ESPN's failure to properly allege the
Court's subject matter jurisdiction, the Notice of
Removal is also procedurally defective because neither Mr.
Gross nor Mr. Reynolds have joined in the Notice of Removal
and ESPN has failed to explain their absence. All proper
defendants in an action must join or consent to a notice of
removal. 28 U.S.C. § 1446(a); Prize Frize, Inc. v.
Matrix (U.S.) Inc., 167 F.3d 1261, 1266 (9th Cir. 1999),
superseded by statute on other grounds as stated in
Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 681 (9th
Cir. 2006) (noting that jurisdiction under Class Action
Fairness Act does not require joinder of all defendants);
Parrino v. FHP, Inc., 146 F.3d 699, 703 (9th Cir.
1998) (“[A]ll defendants must join a notice of
removal.”) (internal citation omitted). “Where
fewer than all the defendants have joined in a removal
action, the removing party has the burden under section
1446(a) to explain affirmatively the absence of any
co-defendants in the notice for removal.” Prize
Frize, 167 F.3d at 1266. A removing defendant must
exercise due diligence to ascertain if other defendants have
been served, and simply checking if a proof of service has
been filed with in the state court is insufficient. See,
e.g., Pianovski v. Laurel Motors, Inc., 924
F.Supp. 86, 87 (N.D. Ill. 1996).
ESPN's Notice of Removal does not include any discussion
concerning the absence of a joinder by the co-defendants or
any reason why their joinder in the Notice of Removal is not
necessary. Indeed, even allegations concerning the status of
other defendants made on information and belief are
insufficient to support a removal. See Valdez v. Allstate
Ins. Co., 372 F.3d 1115, 116-17 (9th Cir. 2004);
Prize Frize, 167 F.3d at 1266 (finding Notice of
Removal which alleged that the removing defendants
“have been informed and believe that many of the other
defendants . . . have not been properly served in this
matter” was facially deficient); Riggs v. Plaid
Pantries, Inc., 233 F.Supp.2d 1260, 1267 (D. Ore. 2001);
Anne Arundel County v. United Pac. Ins. Co., 905
F.Supp. 277, 279 (D. Md. 1995) (finding that statement
“‘upon information and belief [that non-removing
defendant] does not object to this Petition for Removal'
. . . is not sufficient . . . to satisfy the requirements of
Court therefore concludes that ESPN's failure to
affirmatively explain the absence of the other defendants
renders the Notice of Removal procedurally defective.
See 28 U.S.C. § 1446(a); PrizeFrize, 167 F.3d at 1266. Although the Court would
normally stay an order remanding an action based on a
procedural defect for a short period of time to provide
Plaintiff with an opportunity to object to the remand and
waive the procedural defect, because ESPN has also failed to
satisfactorily establish the Court's subject matter
jurisdiction, the Court will not stay the remand.