United States District Court, N.D. California
ORDER REMANDING CASE TO STATE COURT
Gonzalez Rogers United States District Court Judge
October 13, 2017, defendants Tintri, Inc., et al.
removed the above-captioned securities class action alleging
violations of 15 U.S.C. § 77 (the “Securities
Act”). (Dkt. No. 1.) On October 18, 2017, this Court
related the case sua sponte to Clayton v.
Tintri, Inc., 17-cv-05683-YGR
(“Clayton”) and Nurlybayev v.
Tintri, Inc., et al, 4:17-cv-05684-YGR
(“Nurlybayev”). (Dkt. No. 16.)
Clayton and Nurlybayev were remanded to the
Superior Court of the State of California, County of San
Mateo (the “State Court”) on October 27, 2017,
pursuant to 15 U.S.C. § 77(v)(a) which states that
“[e]xcept as provided in section 77p(c) of this title,
no case arising under this subchapter and brought in any
State court of competent jurisdiction shall be removed to any
court of the United States.” Plaintiff filed a timely
motion to remand the above-captioned case to the State Court
on November 13, 2017. (Dkt. No. 23.) Defendants opposed
plaintiff's motion on November 16, 2017. (Dkt. No. 25.)
carefully considered the briefings and the arguments of the
parties, the Court Remands the
above-captioned case to the State Court.
defendant may remove a civil action filed in state court if
the action could have originally been filed in federal court.
See 28 U.S.C. § 1441. A plaintiff may seek to
have a case remanded to the state court from which it was
removed if the district court lacks jurisdiction or if there
is a defect in the removal procedure. 28 U.S.C. §
1447(c). The removal statutes are generally construed
restrictively, so as to limit removal jurisdiction. See
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,
108-09 (1941). Typically a “strong presumption”
exists against finding removal jurisdiction. Gaus v.
Miles Inc., 980 F.2d 564, 566 (9th Cir. 1992). The
burden of establishing federal jurisdiction for purposes of
removal is on the party seeking removal. Ibarra v.
Manheim Inv., 775 F.3d 1193, 1199 (9th Cir. 2015);
Rodriguez v. AT&T Mobility Servs. LLC, 728 F.3d
975, 977 (9th Cir. 2013). Doubts as to removability are
generally resolved in favor of remanding the case to state
court. See Matheson v. Progressive Specialty Ins.
Co., 319 F.3d 1089, 1090 (9th Cir. 2003).
The Securities Act of 1933
Securities Act of 1933, which imposes liability for omissions
and misstatements in various securities-related
communications, provides concurrent jurisdiction in state and
federal courts over alleged violations of the Act. “
Luther v. Countrywide Home Loans Servicing LP, 533
F.3d 1031, 1033 (9th Cir. 2008). However, Section 77v(a) of
the Securities Act “strictly forbids the removal of
cases brought in state court and asserting claims under the
Act.” Id. (highlighting “the
specific bar against removal of cases under the
‘33 Act” (emphasis in original)).
to Section 77v(a), “[e]xcept as provided in section
77p(c) of this title, no case arising under this subchapter
and brought in any State court of competent jurisdiction
shall be removed to any court of the United States.” A
litany of courts in this district have characterized Section
77v(a) as an “anti-removal provision.”
Seafarers Officers & Emps. Pension Plan v. Apigee
Corp., No. 17-cv-04106-JD, 2017 U.S. Dist. LEXIS 142292,
at *4 (N.D. Cal. Sept. 1, 2017); Elec. Workers Local #357
Pension & Health & Trs. v. Clovis Oncology,
Inc., 185 F.Supp.3d 1172, 1178 (N.D. Cal. 2016);
Buelow v. Alibaba Grp. Holding Ltd., No.
15-cv-05179-BLF, 2016 U.S. Dist. LEXIS 7444 (N.D. Cal. Jan.
20, 2016); City of Warren Police & Fire Ret. Sys. v.
Revance Therapeutics, Inc., 125 F.Supp.3d 917 (N.D. Cal.
2015); Plymouth Cty. Ret. Sys. v. Model N, Inc., No.
14-cv-04516-WHO, 2015 U.S. Dist. LEXIS 1104 (N.D. Cal. Jan.
5, 2015); Liu v. Xoom Corp., No. 15-cv-00602-LHK,
2015 U.S. Dist. LEXIS 82830 (N.D. Cal. June 25, 2015);
Toth v. Envivo, Inc., No. C 12-5636 CW, 2013 U.S.
Dist. LEXIS 147569, at *3 (N.D. Cal. Oct. 11, 2013);
Cervantes v. Dickerson, No. 15-cv-3825-PJH, 2015
U.S. Dist. LEXIS 143390 (N.D. Cal. Oct. 21, 2015);
Desmarais v. Johnson, No. C 13-03666 WHA, 2013 U.S.
Dist. LEXIS 153165, at *8-*9 (N.D. Cal. Oct. 22, 2013);
Harper v. Smart Techs Inc., No. C 11-5232 SBA, 2012
U.S. Dist. LEXIS 191130, at *13 (N.D. Cal. Sept. 28, 2012).
exception in Section 77p(c) states that ‘[a]ny covered
class action brought in any State court involving a covered
security, as set forth in subsection [77p](b), shall be
removable to the Federal district court for the district in
which the action is pending, and shall be subject to
subsection (b).'” Apigee, 2017 U.S. Dist.
LEXIS 142292, at *1-2 (quoting 15 U.S.C. § 77p(c)). In
turn, section 77p(b) “defines a set of cases that
Congress determined cannot be brought in any court, ”
namely “covered class action[s] based upon the
statutory or common law of any State or subdivision thereof
.” Id. (quoting 15 U.S.C. § 77p(b)). The
Supreme Court has indicated that removal under section 77p(c)
is “limited to those [cases] precluded by the terms of
subsection (b).” Kircher v. Putnam Funds
Trust, 547 U.S. 633, 643 (2006). Put differently,
removal is only proper where necessary to “avoid an
end-run around the federal securities laws by cases asserting
state-law claims.” Apigee, 2017 U.S. Dist.
LEXIS 142292, at *3 (citing Kircher, 547 U.S. at
light of the Ninth Circuit's holding in Luther
and copious case law in this district, the Court finds that
removal is barred under Section 77v(a). “More than
twenty district courts in the Ninth Circuit have addressed
this issue and remanded to state court every time.”
Apigee, 2017 U.S. Dist. LEXIS 142292, at *3
(collecting cases). “The Court sees no good reason to
reconsider the question or depart from these consistent and
considered decisions.” Id.
argue that this Court should decline to remand the
above-captioned case based on an argument which this Court
previously rejected in Clayton and
Nurlybayev, namely that this Court should defer
consideration until the Supreme Court's decision in
Cyan. (Dkt. No. 25 at 1; Clayton Dkt. No.
23 at 4:1-20; Nurlybayev Dkt. No. 16 at 4:1-20.)
Here, defendant offers no new arguments, facts or
developments that compel a different result in this action.
Accordingly, the Court Remands the
above-captioned case to State Court.