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Linlor v. The National Rifle Association of America

United States District Court, S.D. California

May 8, 2017

JAMES LINLOR, an individual, Plaintiff,
v.
THE NATIONAL RIFLE ASSOCIATION OF AMERICA, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION TO REMAND; [DOC. NO. 5] GRANTING DEFENDANT'S MOTION TO DISMISS; [DOC. NO. 3] AND DENYING DEFENDANT'S MOTION FOR SANCTIONS [DOC. NO. 11]

          HON. MICHAEL M. ANELLO United States District Judge

         Plaintiff James Linlor (“Plaintiff”), proceeding pro se, filed the instant action against Defendant the National Rifle Association of America (“NRA” or “Defendant”) in San Diego County Superior Court. See Doc. No. 1. In his First Amended Complaint (“FAC”), Plaintiff alleges Defendant violated California Civil Code Section 3344 by addressing and mailing membership renewal notices and other marketing material to Plaintiff. See Doc. No. 1-2 at 8[1] (hereinafter “FAC”).[2] Defendant removed the action to this Court on February 2, 2017. See id.

         On February 9, 2017, Defendant filed a motion to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Doc. No. 3. On February 14, 2017, Plaintiff filed a motion to remand this action back to state court and requested the Court sanction Defendant pursuant to Federal Rule of Civil Procedure 11. Doc. No. 5. Defendant filed a reply brief in support of its motion to dismiss, despite the fact that Plaintiff did not file an opposition to such motion. See Doc. No. 9. On March 24, 2017, Plaintiff filed a “Declaration of Non-Service” claiming Defendant did not serve Plaintiff with a copy of Defendant's motion to dismiss. See Doc. No. 12. Finally, on March 27, 2017, Defendant filed a motion for sanctions under Federal Rule of Civil Procedure 11. Doc. No. 11. Plaintiff did not file an opposition to Defendant's motion for sanctions. The Court found these matters suitable for determination on the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1. See Doc. Nos. 10, 15. For the reasons set forth below, the Court DENIES Plaintiff's motion to remand, GRANTS Defendant's motion to dismiss, and DENIES Defendant's motion for sanctions.

         Background [3]

         Plaintiff James Linlor is an individual residing in the County of San Diego. The NRA is a foreign corporation chartered in New York, with its principal place of business in Fairfax, Virginia. See Doc. No. 8-2 (hereinafter “Frazer Decl.”) ¶¶ 3-4.

         In July 2016, Plaintiff began receiving membership renewal notices and other marketing material from the NRA in the mail. Plaintiff never requested the NRA contact him. After receiving several marketing letters, Plaintiff contacted the NRA by telephone to request that he be removed from the NRA's mailing list. The NRA agreed to cease sending Plaintiff marketing material. Within the following two months, Plaintiff received at least two additional marketing letters from the NRA. In total, Plaintiff received six letters.

         Plaintiff alleges one cause of action for commercial misappropriation under California Civil Code Section 3344. Plaintiff contends the NRA sent marketing material “knowing that it lacked consent to advertise” to Plaintiff, and that in sending Plaintiff such letters, the NRA hoped Plaintiff would “open a membership or credit card offer.” FAC at 12. Thus, Plaintiff claims the NRA sent Plaintiff marketing material on six occasions with Plaintiff's full name via mail “in violation of California Civil Code Section 3344.” FAC at 11.

         Plaintiff's Motion to Remand

         As an initial matter, Plaintiff moves to remand this action to state court, arguing that the parties are not diverse. Defendant opposes the motion.

         1. Legal Standard

         Title 28 of the United States Code, section 1441(a), provides for removal of a civil action from state to federal court if the case could have originated in federal court. The statute is construed strictly against removal, and “[f]ederal 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). As the removing party, the defendant bears the burden of establishing that the court has subject matter jurisdiction. Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 685 (9th Cir. 2006).

         When a state case is removed to federal court based on diversity jurisdiction, “an amount-in-controversy requirement must be met, ” in addition to the diversity of citizenship requirement. Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S.Ct. 547, 551 (2014). Diversity of citizenship requires that the parties be “citizens of different states, ” and the amount in controversy meet or exceed $75, 000. 28 U.S.C §§ 1332(a), 1446(a). Moreover, “a corporation shall be deemed a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business[.]” 28 U.S.C. § 1332(c)(1). A corporation's principal place of business “is best read as referring to the place where the corporation's officers direct, control, and coordinate the corporation's activities.” Hertz Corp v. Friend, 559 U.S. 77, 92-93 (2010).

         A defendant must comply with certain procedural requirements when removing an action, including timely filing the notice of removal within thirty days after the service of the summons and complaint. See 28 U.S.C. § 1446(b)(1). A renewed thirty-day removal period begins when a defendant receives “an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable . . . .” Id. § 1446(b)(3). Although “the statutory time limit for removal petitions is merely a formal and modal requirement and is not jurisdictional, ” it “is mandatory and a timely objection to a late petition will defeat removal.” Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir. 1980).

         2. Analysis

         Here, the Court finds that complete diversity exists between the parties. In his FAC, Plaintiff claims he “is a natural person residing in the County of San Diego, State of California.” Doc. No. 1-2 at 9. In his motion to remand, however, Plaintiff asserts he is a citizen of Nevada. See Doc. No. 5 at 3 (“However, pro se Plaintiff's primary residence is located in Nevada, where Plaintiff is a citizen.”). Defendant is a foreign corporation chartered in New York, with its principal place of business in Fairfax, Virginia. Frazer Decl. ¶¶ 3-4. Plaintiff contends the parties are not diverse because “Defendant has many business contacts in California, dispelling Defendant's assertion of diversity of jurisdiction.” Doc. No. 5 at 2. However, Defendant's board of directors meet, direct, control and coordinate Defendant's activities in Virginia, and the board has never met for a directors' meeting in California, nor has the board made major business decisions in California. Frazer Decl. ¶ 3. Accordingly, regardless of whether Plaintiff is a citizen of California or Nevada, complete diversity exists between the parties because the parties are citizens of different states.

         Further, the Court finds the amount in controversy requirement is satisfied. Plaintiff's FAC alleges $200, 000 in punitive damages and $4, 500 in statutory damages. See Doc. No. 1-2 at 13. See Gibson v. Chrysler Corp., 261 F.3d 927, 945 (9th Cir. 2001) (articulating that punitive damages may be considered in determining the amount in controversy in a civil action).

         Finally, Plaintiff claims Defendant “suddenly filed for removal to Federal Court in San Diego.” Doc. No. 5 at 3. The Court notes that Plaintiff filed his FAC in state court on January 4, 2017, and Defendant filed its notice of removal on February 2, 2017. See Doc. No. 1. Thus, to the extent Plaintiff raises an argument about the timeliness of Defendant's removal, Defendant timely removed this action within the thirty (30) day removal period set forth in the statute. See 28 U.S.C. § 1446(b)(3).

         In sum, because the parties are diverse, and the amount in controversy exceeds $75, 000, diversity jurisdiction exists in this case. Accordingly, the Court DENIES Plaintiff's motion to remand.

         Defendant's Motion to Dismiss

         Defendant moves to dismiss Plaintiff's FAC for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See Doc. No. 3. Before considering the substance of Defendant's motion, the Court addresses Plaintiff's declaration of non-service and Plaintiff's failure to oppose Defendant's motion to dismiss.

         A. Plaintiff's Declaration of Non-Service

         As an initial matter, Plaintiff filed a declaration of non-service claiming Defendant did not serve Plaintiff with its motion to dismiss. See Doc. No. 12. Federal Rule of Civil Procedure 5(b) provides that “[a] paper is served under this rule by . . . mailing it to the person's last known address-in which event service is complete upon mailing[.]” Fed.R.Civ.P. 5(b)(2)(c). Rule 5(d) ...


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