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Cox v. R.J. Reynolds Tobacco Co., Inc.

United States District Court, C.D. California

April 5, 2017

Cox
v.
R.J. Reynolds Tobacco Co., Inc. et al.

          PRESENT: HONORABLE S. JAMES OTERO, UNITED STATES DISTRICT JUDGE

          CIVIL MINUTES - GENERAL

         PROCEEDINGS (in chambers): ORDER DENYING PLAINTIFF'S MOTION FOR AN ORDER TO REMAND THIS CASE TO STATE COURT [Docket No. 31]

         This matter is before the Court on Plaintiff Timothy Cox's ("Plaintiff") Motion for an Order to Remand this Case to State Court ("Motion"), filed March 13, 2017. Defendants R.J. Reynolds Tobacco Company ("RJRT"), Reynolds American, Inc. ("RAI"), Staci Meyer ("Meyer"), and Tasha Kolbe ("Kolbe") (collectively, "Defendants") opposed the Motion ("Opposition") on March 27, 2017, and Plaintiff replied ("Reply") on April 3, 2017. The Court found this matter suitable for disposition without oral argument and vacated the hearing set for April 17, 2017. See Fed. R. Civ. P. 78(b). For the following reasons, the Court DENIES Plaintiff's Motion.

         1. FACTUAL AND PROCEDURAL BACKGROUND

         On December 22, 2016, Plaintiff filed a Complaint for Damages, Injunctive Relief, and Restitution ("Complaint") in the Superior Court of the State of California for the County of Los Angeles, asserting twenty (20) causes of action against Defendants. (See Notice of Removal, Ex. A-1 at 2, ECF No. 1.) On December 27, 2016, Plaintiff filed a First Amended Complaint for Damages, Injunctive Relief, and Restitution ("FAC") in state court, asserting twenty-one (21) causes of action against Defendants. (See Notice of Removal, Ex. A-1 at 60.) Although the majority of these causes of action arise under state law, the sixth, seventh, and eighth arise under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (See FAC ¶¶ 128-150.)

         RAI removed to this Court on February 15, 2017, and RJRT, Meyer, and Kolbe joined in the removal. (See Notice of Removal ¶¶ 2-3.) In their Notice of Removal, Defendants make the following averments regarding when they were served with copies of the pleadings: (1) RAI was served with both the Complaint and FAC on January 17, 2017; (2) RJRT was served with the Complaint and FAC on December 28, 2016; (3) Meyer was served with the Complaint and FAC on December 30, 2016; and (4) Kolbe was served with the Complaint and FAC on January 24, 2017. (Notice of Removal ¶ 2.) Defendants also submit that they filed a Joint Answer to the FAC on January 27, 2017. (Notice of Removal ¶ 4, Ex. A-2.)

         Attached to the Notice of Removal are a number of exhibits that detail when service of process was effectuated upon Defendants. Exhibit A-2 contains a "Notice of Service of Process" created by Corporation Service Company ("CSC"), which provides that summons and the pleadings were personally served on CSC, on behalf of RJRT, on December 28, 2016, and further states that service on RJRT was "processed" on December 30, 2016. (See Notice of Removal, Ex. A-2 at 13.) Exhibit A-3 contains copies of the summons and pleadings, and provides that Meyer was served with these documents on December 30, 2016. (See Notice of Removal, Ex. A-3 at 2.) Exhibit A-4 likewise contains a "Notice of Service of Process" created by CSC, which provides that summons and the pleadings were personally served on CSC, on behalf of RAI, on January 17, 2017, and further states that service on RAI was "processed" on January 18, 2017. (See Notice of Removal, Ex. A-4 at 2.) This Notice provides that the "Primary Contact" is Martin L. Holton of RJRT, and that electronic copies were provided to, among others, RAI. (Notice of Removal, Ex. A-4 at 2.) Finally, Exhibit A-5 details that an individual defendant received copies of the summons and pleadings on January 24, 2017-presumably this person is Kolbe. (See Notice of Removal, Ex. A-5 at 2.) Also on February 15, 2017, counsel for Defendants filed (1) a Notice of Interested Parties; (2) a Corporate Disclosure Statement for RJRT; and (3) a Corporate Disclosure Statement for RAI, submitting that RAI is a publicly traded corporation and that RJRT is "an indirect, wholly owned subsidiary of" RAI. (Notice of Interested Parties, ECF No. 3; see also Corporate Disclosure Statements, ECF Nos. 4-5.) On March 1, 2017, RAI and Kolbe filed an Amended Notice of Removal, which does not appear to be materially different from Defendants' initial Notice of Removal. (See Am. Notice of Removal, ECF No. 12.)

         II. DISCUSSION

         Perhaps because Plaintiff asserts three causes of action under Title VII in his FAC, he does not challenge whether this Court can properly exercise subject-matter jurisdiction over this action. (See generally Mot., ECF No. 31.) Instead, he argues that Defendants' removal was untimely for a bevy of reasons. Plaintiff primarily contends that because certain facts suggest that RAI and RJRT "are subject to such a degree of common ownership, control and management, in that each corporation was the agent of each other and each corporation authorized the same agent for service of process, " the Court should treat the December 28, 2016 service of process upon CAC as agent for RJRT as tantamount to effectuating proper service upon RAI on this date. (See Mot. 7.) Plaintiff raises other challenges regarding the Amended Notice of Removal.

         A. Legal Standards

         28 U.S.C. § 1441(a) provides that, subject to certain exceptions not applicable here, "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 or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). Section 1446, which governs the procedure for removal of civil actions, provides that "[t]he notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter." 28 U.S.C. § 1446(b)(1) (emphasis added). Section 1446 further provides that "[e]ach defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal." 28 U.S.C. § 1446(b)(2)(B). Moreover, "[i]f defendants are served at different times, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal even though that earlier-served defendant did not previously initiate or consent to removal." 28 U.S.C. § 1446(b)(2)(C) (emphasis added).

         "A motion to remand challenges the propriety of an action's removal to federal court." Viriyapanthu v. Am. Airlines, No. CV 16-05761-AB (GJSx), 2016 WL 5842181, at *2 (C.D. Cal. Oct. 3, 2016) (citing 28 U.S.C. § 1447). "The Court may remand an action for lack of subject matter jurisdiction or for any defect in the removal procedure." Id. (citing 28 U.S.C. § 1447(c)). "Because federal courts are courts of limited jurisdiction, removal statutes are strictly construed, with any doubts resolved in favor of remand." Id. (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941)). The removing party bears the burden of proving that removal was proper. United Comput. Sys. v. AT&T Corp., 298 F.3d 756, 763 (9th Cir. 2002). Where a plaintiff asserts there are defects in the removal procedure, the defendant must establish that it followed the proper procedure for removal under Section 1446. See 28 U.S.C. §§ 1446(b)(1), (3).

         B. Analysis

         Plaintiff's Motion is predicated on a mistaken belief that because RJRT and RAI are related entities that use the same agent for service of process, the Court should treat RAI as being "served" on December 28, 2016, the day RJRT was served with copies of summons and the complaints. This theory ...


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