United States District Court, N.D. California, San Jose Division
ORDER DENYING MOTION TO REMAND; GRANTING MOTION TO
TRANSFER Re: Dkt. Nos. 18, 21
J. DAVILA United States District Judge
Antonia Medina (“Plaintiff”) filed this action
against OANDA Corporation in California Superior Court
alleging breach of contract and other related claims arising
under state law. OANDA removed this action to federal court
on diversity grounds, pursuant to 28 U.S.C. §§
1332(a) and 1441(b). See Dkt. No. 1.
before the court is Plaintiff's Motion to Remand, as well
as OANDA's Motion to Transfer this action to the United
States District Court for the Southern District of New York
pursuant to 28 U.S.C. § 1404(a) and the terms of a
mandatory forum selection clause contained in OANDA's
customer agreement. Dkt. Nos. 18, 21. Having carefully
considered the relevant pleadings and papers submitted by
both parties in this matter, the court DENIES Plaintiff's
Motion to Remand and GRANTS OANDA's Motion to Transfer
for the reasons explained briefly below.
purposes of the motions presently pending before the court,
the relevant factual and procedural background in this case
is as follows:
is a foreign currency exchange company offering online
currency exchange trading, foreign currency transfers, and
currency services information. See Am. Compl.
(“AC”) ¶ 1, 4, Dkt. No. 15. OANDA is a
corporation organized and existing under the laws of
Delaware, with its principal place of business located in New
York, New York. Decl. of Srivatsa Narasimha (“Narasimha
Decl.”) ¶¶ 5, 7-10, Dkt. No. 23-1, Exs. A and
B. OANDA also has an office located in San Francisco,
California. Id. ¶ 16; AC ¶ 1. However,
OANDA's Executive Vice President and Chief Financial and
Strategy Officer represents that OANDA considers New York,
New York - not San Francisco, California - to be the
company's headquarters. Narasimha Decl. ¶ 16.
is, and at all times relevant to this action was, a resident
of Santa Clara County, California. AC ¶ 2. In August
2005, Plaintiff opened an account with OANDA's online
platform and began using OANDA's currency conversion and
trading services. Id. ¶ 4.
filed this action in California Superior Court on February
29, 2016, alleging breach of contract, false advertising, and
other related state law claims arising from his use of
OANDA's currency trading platform and services.
See Dkt. No. 1-1. On April 22, 2016, OANDA removed
the case to federal court on diversity grounds. Dkt. No. 1.
On May 16, 2016, Plaintiff filed an Amended Complaint in
which he added Edmond I. Eger, III (“Eger”) -
OANDA's Chief Executive Officer and a resident of San
Francisco, California - as a defendant in this case. AC
¶ 1. Plaintiff then immediately sought to remand the
case to superior court for lack of diversity jurisdiction,
and requests costs and sanctions. See Dkt. No. 18
Removal Jurisdiction Pursuant to 28 U.S.C. §
jurisdiction is a creation of statute. See Libhart v.
Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir.
1979) (“The removal jurisdiction of the federal courts
is derived entirely from the statutory authorization of
Congress.”). In general, only those state court actions
that could have been originally filed in federal court may be
removed. 28 U.S.C. § 1441(a) (“Except as otherwise
expressly provided by Act of 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.”); see also Caterpillar, Inc. v.
Williams, 482 U.S. 386, 392 (1987) (“Only
state-court actions that originally could have been filed in
federal court may be removed to federal court.”).
Accordingly, the removal statute provides two ways in which a
state court action may be removed to federal court: (1) the
case presents a federal question, or (2) the case is between
citizens of different states and the amount in controversy
exceeds $75, 000. 28 U.S.C. §§ 1441(a), (b).
motion to remand, it is the removing defendant's burden
to establish federal jurisdiction, and the court must
strictly construe removal statutes against removal
jurisdiction. 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.”); Geographic Expeditions, Inc. v. Estate
of Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010).
“Where doubt regarding the right to removal exists, a
case should be remanded to state court.” Matheson
v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090
(9th Cir. 2003); 28 U.S.C. § 1447(c) (“If at any
time before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be
Transfer of Venue Pursuant to 28 U.S.C. §
to 28 U.S.C. § 1404(a), “a district court may
transfer any civil action to any other district or division
where it might have been brought or to any district or
division to which all parties have consented” if such a
transfer is convenient to the parties and witnesses and is
otherwise “in the interest of justice.” The
purpose of § 1404(a) is to “prevent the waste of
time, energy, and money and to protect litigants, witnesses,
and the public against unnecessary inconvenience and
expense.” Van Dusen v. Barrack, 376 U.S. 612,
616 (1964). To determine if transfer is appropriate, the
court first examines whether the case could have been brought
in the proposed transferee district. See Hatch v.
Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir. 1985). An
action may be commenced in any district where the court has
subject matter jurisdiction over the claims; personal
jurisdiction over the defendant; and venue is proper.
Hoffman v. Blaski, 363 U.S. 335, 343-44 (1960). If
the proposed district is a viable one, the court then goes
through “individualized, case-by-case consideration of
convenience and fairness” to determine whether such
interests and the interest of justice favor transfer. Van
Dusen, 376 U.S. at 622.
motion under § 1404(a) is also the proper vehicle to
enforce a forum-selection clause. Atl. Marine Constr.
Co., Inc. v. U.S. Dist. Ct. for W. Dist. of Texas, 134
S.Ct. 568, 579 (2013). While a court typically must weigh
both private and public interest factors in deciding a motion
to transfer, “when the parties' contract contains a
valid forum-selection clause, that clause ‘represents
[their] agreement as to the most proper forum, '”
and is generally given deference over other factors.
Id. at 581. “Only under extraordinary
circumstances unrelated to the convenience of the parties
should a § 1404(a) motion [to enforce a forum selection
clause] be denied.” Id.
Pro Se Pleadings
as here, the pleading at issue is filed by a plaintiff
proceeding pro se, it must be construed liberally.
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).
In doing so, the court “need not give a plaintiff the
benefit of every conceivable doubt” but “is
required only to draw every reasonable or warranted factual
inference in the plaintiff's favor.” McKinney
v. De Bord, 507 F.2d 501, 504 (9th Cir. 1974). The court
“should use common sense in interpreting the frequently
diffuse pleadings of pro se complainants.” Id.
A pro se complaint should not be dismissed unless the court
finds it “beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him
to relief.” Haines v. Kerner, 404 U.S. 519,
Plaintiff's Motion to Remand for Lack of Subject Matter
initially filed in state court, OANDA removed this action to
federal court under this court's diversity jurisdiction,
pursuant to 28 U.S.C. §§ 1332(a) and 1441(b).
Plaintiff now seeks to remand this case to superior court,
arguing the parties are not diverse. Diversity jurisdiction
requires that all parties be in complete diversity and the
amount in controversy exceed $75, 000. 28 U.S.C. §
1332(a)(1); Matheson, 319 F.3d at 1090.
“Complete diversity” exists where no plaintiff is
a citizen of the same state as any defendant to the case.
Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996).
there is no dispute that the amount in controversy exceeds
$75, 000 and that Plaintiff is a citizen of California.
Instead, Plaintiff argues that diversity does not exist
because (1) newly added defendant Edmond Eger is a resident
of San Francisco, California; and (2) OANDA did not meet its
burden to show that its principle place of business is New
York, New York, as opposed to San Francisco, California as
Plaintiff alleges. See Remand Mot. at 1-2. Each
argument will be addressed in turn.
Joinder of Defendant Eger
Rule of Civil Procedure 15 provides that “[a] party may
amend its pleading once as a matter of course within ... 21
days after service of a responsive pleading.”
Fed.R.Civ.P. 15(a). However, “when a party attempts to
amend a complaint in a manner that destroys a federal
court's jurisdiction, [28 U.S.C.] § 1447(e) gives
the court discretion to consider the propriety and fairness
of allowing that amendment.” Clinco v.
Roberts, 41 F.Supp.2d 1080, 1087 (C.D. Cal. 1999);
see also Mayes v. Rapoport, 198 F.3d 457, 462 n.11
(4th Cir. 1999) (explaining that “a district court has
the authority to reject a post-removal joinder that
implicates 28 U.S.C. § 1447(e), even if the joinder was
without leave of court.”). Under 28 U.S.C. §
1447(e), “if after removal the plaintiff seeks to join
additional defendants whose joinder would destroy subject
matter jurisdiction, the court may deny joinder, or permit
joinder and remand the action to state court.” It is
therefore left to the discretion of the district court to
determine whether to permit joinder of a diversity destroying
defendant. Newcombe v. Adolf Coors Co., 157 F.3d
686, 691 (9th Cir. 1998).
making the determination as to whether joinder should be
permitted in such cases, courts consider a number of factors,
including: “(1) whether the party sought to be joined
is needed for just adjudication and would be joined under
Federal Rule of Civil Procedure 19(a); (2) whether the
statute of limitations would preclude an original action
against the new defendants in state court; (3) whether there
has been unexplained delay in requesting joinder; (4) whether
joinder is intended solely to defeat federal jurisdiction;
(5) whether the claims against the new defendant appear
valid; and (6) whether denial of joinder will prejudice the
plaintiff.” IBC Aviation Servs., Inc. v. Compania
Mexicana de Aviacion, S.A. de C.V., 125 F.Supp.2d 1008,
1011 (N.D. Cal. 2000); Neurospine v. Cigna Health &
Life Ins. Co., 2016 WL 7242139, at *7 (N.D. Cal. 2016);
see also McGrath v. Home Depot USA, Inc., 298 F.R.D.
601, 607 (S.D. Cal. 2014) (“[T]he majority of district
courts in the Ninth Circuit addressing the specific situation
of a plaintiff attempting to use a Rule 15(a) amendment
‘as a matter of course' to destroy diversity
jurisdiction by adding claims against a non-diverse defendant
have scrutinized the plaintiff's purposes for amendment
under § 1447(e).”).
on a review of the record and the allegations asserted in
this case, the court finds that, on balance, the relevant
factors do not support permitting joinder of Eger.
Necessity of Defendant for Just Adjudication Under Rule 19
Eger is not a necessary defendant for “just
adjudication” of this action. Rule 19 “requires
joinder of persons whose absence would preclude the grant of
complete relief, or whose absence would impede their ability
to protect their interests or would subject any of the
parties to the danger of inconsistent obligations.”
Fed.R.Civ.P. 19(a). Plaintiff seeks damages for the alleged
financial losses he suffered in connection with his use of
OANDA's foreign currency exchange services. The only