United States District Court, C.D. California
Present: The Honorable PERCY ANDERSON, UNITED STATES DISTRICT
CIVIL MINUTES - GENERAL
IN CHAMBERS - COURT ORDER
Court is in receipt of a Notice of Removal filed by
defendants Sephora USA, Inc. and Michele Lynn Lowrance
(“Removing Defendants”). This action was filed by
plaintiff Roya Tabarzad (“Plaintiff”) against The
Law Office of Michael Ira, Asen, P.C., Michael Ira Asen, and
Officer Joanthan C. Tripp (collectively “Non-Removing
Defendants”), as well as the Removing Defendants.
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). “The removal statute is strictly
construed against removal jurisdiction, and the burden of
establishing federal jurisdiction falls to the party invoking
the statute.” California ex rel. Lockyer v. Dynegy,
Inc., 375 F.3d 831, 838 (9th Cir. 2004) (citing
Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393
(9th Cir. 1988)). “The defendant also has the burden of
showing that it has complied with the procedural requirements
for removal.” Riggs v. Plaid Pantries, Inc.,
233 F.Supp.2d 1260, 1264 (D. Or. 2001). Failure to comply
with the statutory time limit bars removal. See,
e.g., N. Ill. Gas Co. v. Airco Indus. Gases,
676 F.2d 270, 273 (7th Cir. 1982).
the Notice of Removal is procedurally defective because the
Non-Removing Defendants have not joined in the Notice of
Removal, and the Removing Defendants have 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1261, 1266 (9th Cir. 1999), superseded by statute on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); Parrino v.
FHP, Inc., 146 F.3d 699, 703 (9th Cir. 1998) (“All
defendants must join a notice of removal.”).
“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).
Notice of Removal does not include any discussion concerning
the absence of a joinder by the Non-Removing 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);
Court therefore concludes that the Notice of Removal is
procedurally defective. See 28 U.S.C. §
1446(a); Prize Frize, 167 F.3d at 1266. Accordingly,
this action is remanded to Orange County Superior Court, Case
No. 30-2016-00869348-CU-CR-CJC, for failure to comply with
the removal requirements of 28 U.S.C. § 1446.
See 28 U.S.C. § 1447(c). The Court stays this
order until April 7, 2017. If Plaintiff wishes to waive the
procedural defect and, as a result, remain in federal court,
she must file a Notice of Waiver of Procedural Defects no
later than April 6, 2017. If Plaintiff does not file such a
Notice, the Court will conclude that Plaintiff has not waived
the procedural defect. After that date, the Court will remand
this action to Orange County Superior Court as a result of
the procedural defect in the Notice of Removal.
Court also notes that Exhibit A to the Notice of Removal
(Docket No. 1-2) violates Federal Rule of Civil Procedure
5.2(a) because it contains Plaintiff's full social
security number. See Fed.R.Civ.P. 5.2(a)
(“Unless the court orders otherwise, in an electronic
or paper filing with the court that contains an
individual's social-security number . . . a party or
nonparty making the filing may include only . . . the last
four digits of the social-security number.”); see
also L.R. 5.2-1 (“Parties shall carefully examine
the documents, exhibits, or attachments to be filed with the
Court in order to protect any sensitive and private
information. The responsibility for redacting or placing
under seal protected personal data identifiers rests solely
with counsel and the parties.”).
Clerk is ordered to place Exhibit A to the Notice of Removal
(Docket No. 1-2) under seal. Any future violations of the
Federal Rules of Civil Procedure, the Central District's
Local Rules, or this ...