United States District Court, C.D. California
PRESENT: THE HONORABLE STEPHEN V. WILSON, UNITED STATES
CIVIL MINUTES - GENERAL
IN CHAMBERS ORDER GRANTING MOTION TO REMAND [ 14]
read and considered the papers presented by the parties, the
Court finds this matter suitable for determination without
oral argument. See Fed. R. Civ. P. 78; Local Rule
7-15. Accordingly, the hearing scheduled for June 5, 2017 at
1:3O p.m. is VACATED and OFF CALENDAR.
Shauna and Jonathan Penn ("Plaintiffs") bring this
case against Defendants Amazon. Com, Inc.
("Amazon"), and American International Industries
("All", collectively "Defendants").
Plaintiffs allege, inter alio, a products liability
claim arising from Shauna Perm's injury while using a
callus remover manufactured by All and sold and distributed
by Amazon. On April 7, 2017, Amazon removed this action to
federal court based on diversity jurisdiction. On May 1,
2017, Plaintiffs filed a motion for remand. For the following
reasons, the motion is GRANTED.
March 21, 2017, Plaintiffs filed this action in California
state court. The parties do not dispute that diversity of
citizenship exists between all parties and the amount in
controversy is over $75, 000. Thus, the Court has diversity
jurisdiction over the case. See 28 U.S.C. §
1332. It is also undisputed that AH is a resident of
California. Further, 28 U.S.C. § 1441(b)(2) prohibits
removal "if any of the parties in interest properly
joined and seived as defendants is a citizen of the State in
which [an] action is brought." On April 7, 2017, Amazon
removed the case to federal court. At this point, neither
defendant had been served. On April 20, 2017, Plaintiffs
seived All-the forum defendant.
district court may remand a case for lack of subject matter
jurisdiction or for any defect in the removal procedure. 28
U.S.C. § 1447(c). In light of the "strong
presumption against removal jurisdiction, " a defendant
"always has the burden of establishing that removal is
proper." Gaits v. Miles, Inc., 980 F.2d 564,
566 (9th Cir. 1992) (internal quotations omitted). We
"strictly construe the removal statute against removal
jurisdiction, " id., and "[w]here doubt
regarding the right to removal exists, a case should be
remanded to state court, " Matheson v. Progressive
Specialty Im. Co., 319 F.3d 1089, 1090 (9th Cir. 2003);
see also 28 U.S.C. § 1447(c).
is no dispute that the plain language of § 1441(b)(2)
did not prohibit Amazon from removing the case. That section
prohibits removal when a forum defendant is "properly
joined and served". Id. (emphasis added). When
amazon removed the case there was no forum defendant served
at the time.
argue that the Court should not follow the plain language of
§ 1441(b)(2). Essentially, then argument is that when
Congress enacted § 1441(b)(2) the technology did not
exist for corporate defendants to monitor state dockets and
identify cases in which they have been named, but not served.
This technology allows defendants to remove cases that would
otherwise not be removable after service of process is
complete. This concern is "far from academic."
Phillips Constr., LLC v. Daniels Law Finn, PLLC, 93
F.Supp.3d 544, 555 (S.D. W.Va. 2015) (finding
"substantial evidence that sophisticated defendants
monitor court dockets for the chance to hastily remove new
complaints."). Plaintiffs argue that even though
Amazon's removal conformed to the plam language of the
statute, it produces an "unreasonable result at
variance with the policy of the legislation as a whole."
See Standing v. Watson Pharm., Inc., No. CV09-0527
DOC(ANX), 2009 WL 842211, at *4 (CD. Cal. Mar. 26, 2009).
courts are split on this issue and there is no authority from
the Ninth Circuit. Though almost all district courts have
foimd the plain language of § 1441(b)(2) allows removal
before a forum-defendant is seived, some district courts find
that adherence to the plain language would lead to an absurd
result, and thus depart from the plain language. See
Standing, 2009 WL 842211, at *2-5 (finding that removal
one day after the case was filed was an unreasonable result
and thus departing from the plain language of §
1441(b)(2)). These courts "look past a literal reading
of the statute, determine that a blind application of the
plam meaning of Section 1441(b)(2) is contrary to legislative
intent or produces absurd results." Phillips
Constr., LLC, 93 F.Supp.3d at 552. "[T]he emerging
trend seems in favor of disallowing pre-service
removal." Perez v. Forest Labs., Inc., 902
F.Supp.2d 1238, 1245 (E.D. Mo. 2012).
Court is convinced by the cases finding that removal in this
simation "produces unreasonable results at variance with
the policy of the legislation as a whole."
Standing, 2009 WL 842211, at *4; cf City-of Ann
Arbor Employees' Retirement System v. Gecht, No.
C-06-7453 EMC, 2007 WL 760568, at *8 (N.D. Cal. Mar. 9, 2007)
(declining to follow the plain language of § 1441(b)(2)
because "[a] court Took[s] beyond the express language
of a stamte where a literal interpretation would thwart the
piupose of the overall statutory scheme or lead to an absurd
or futile result."') (citing Albertson's,
Inc. v. Commissioner of Internal Revenue,42 F.3d 537,
545 (9th Cir. 1994)). The requirement for a forum-defendant
to be "properly joined and served" is intended
"as an effort to prevent gamesmanship by
plaintiffs." Goodwin v. Reynolds, 757 F.3d
1216, 1221 (11th Cir. 2014) (citing Sullivan v.
Novartis Pharms. Corp.,575 F.Supp.2d 640, 643 (D.N.J.
2008)). This requirement prevents a plaintiff from preventing
removal by joining a forum-defendant whom the plaintiff has
no intent to proceed against, or even serve. See Id.
A literal reading of § ...