United States District Court, S.D. California
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.
MICHAEL M. ANELLO United States District Judge
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 (hereinafter
“FAC”). Defendant removed the action to this Court
on February 2, 2017. See id.
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.
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.
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
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.
Motion to Remand
initial matter, Plaintiff moves to remand this action to
state court, arguing that the parties are not diverse.
Defendant opposes the motion.
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).
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).
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).
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.
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).
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).
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.
Motion to Dismiss
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.
Plaintiff's Declaration of Non-Service
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) ...