United States District Court, S.D. California
GINA BECKMAN, individually and on behalf of all others similarly situated, Plaintiff,
WAL-MART STORES, INC., et al., Defendants.
ORDER DENYING MOTION TO REMAND [ECF NO. 10]
CYNTHIA BASHANT UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff Gina Beckman's Motion to
Remand. (ECF No. 10.) On November 3, 2017, Defendants
Wal-Mart Stores, Inc., Espresso Supply, Inc., and Eko Brands,
LLC (collectively, “Defendants”) removed this
matter to federal court based on diversity jurisdiction under
28 U.S.C. §§ 1331, 1332, 1141(b), and 1441(c).
Plaintiff argues that removal was untimely under 28 U.S.C.
§ 1446(b). (Id.)
Court finds these motions suitable for determination on the
papers submitted and without oral argument. See Civ.
L. R. 7.1(d)(1). For the following reasons, the Court finds
removal was timely and DENIES
Plaintiff's motion to remand this action to the San Diego
16, 2017, Plaintiff commenced this action in the San Diego
Superior Court asserting claims for: (1) breach of implied
warranty of merchantability; (2) breach of express warranty;
(3) breach of implied warranty of fitness for a particular
purpose; and (4) violation of the Business and Professions
Code §§ 17200 et seq. and 17500 et
seq. (ECF No. 10-1 ¶ 3.) Plaintiff named the
following defendants: “Wal-Mart Stores, Inc.” and
“Brew & Save.” (Id.) On June 20,
2017, Plaintiff personally served Defendant Wal-Mart Stores,
Inc. (“Wal-Mart”) with the initial complaint.
(Id. ¶ 4.) Plaintiff also contends that
“Defendant Brew & Save was personally served with
the initial complaint . . . on or about July 5, 2017.”
(Id. ¶ 5.)
August 1, 2017, David A. Lowe, counsel for Espresso Supply,
Inc., notified Plaintiff's counsel that “Brew &
Save had been erroneously sued because it [sic] Brew &
Save is a brand, not a corporate entity.” (ECF No. 10-1
¶ 6.) Further, Mr. Lowe provided that “Eko Brands,
LLC manufactures the Brew & Save Carafe Filters, ”
and “Espresso Supply, Inc. is the parent company of Eko
Brands, LLC.” (Id.)
email to Plaintiff's counsel on that same day, Mr. Lowe
summarized this telephone conversation, stating once more
that “Eko Brands, LLC (wrongly named in the complaint
as Brew & Save)” was the proper entity defendant to
this suit. (ECF No. 10-1 at Ex. 1.) Additionally, Mr. Lowe
informed Plaintiff's counsel that he would be contacting
Wal-Mart to discuss his representation thereof.
(Id.) About two weeks later, Mr. Lowe emailed
Plaintiff's counsel and confirmed that he was now
representing Wal-Mart. (Id. at Ex. 2.) Mr. Lowe also
reiterated the agreement he had made with Plaintiff's
counsel “to accept service on behalf of the proper
named party, once the amendment was made, in exchange for an
agreed upon period of answer for all Defendants.”
September 7, 2017, Plaintiff mailed the First Amended
Complaint (“FAC”) to Mr. Lowe. The FAC named the
following defendants: “Wal-Mart Stores, Inc., ”
“Espresso Supply, Inc., ” “Eko Brands, LLC,
” and “Ekobrew.” (Id. ¶ 11.)
On September 27, 2017, Mr. Lowe notified Plaintiff's
counsel indicating that he would not accept service.
Specifically, Mr. Lowe stated: “We never indicated that
Ekobrew was an entity or ever acquired, ” and suggested
that Plaintiff “amend to correct the complaint, after
which [he and his clients were] happy to discuss service on
behalf of properly named entity defendants.” (ECF No.
10-1 at Ex. 6.)
of amending and re-serving a second amended complaint as Mr.
Lowe suggested, Plaintiff's counsel served Defendants
personally. The caption still included “Ekobrew”
as a defendant. (Id. ¶ 15.) On September 28,
2017, Plaintiff served Wal-Mart by mail with the FAC. (ECF
10-1 ¶ 14.) On October 4, 2017, Plaintiff served Eko
Brands, LLC (“Eko Brands”) and Espresso Supply,
Inc. (“Espresso Supply”) personally with the FAC.
(ECF No. 10-1 ¶ 15.)
November 3, 2017 Defendants filed their Notice of Removal
pursuant to 28 U.S.C. §§ 1331, 1332, 1141(b) and
1441(c). (ECF No. 1.) On December 4, 2017, Plaintiff filed a
Motion to Remand and Request for an Award of Costs and
Attorneys' Fees. (ECF No. 10.)
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.” 28 U.S.C. §
1441(a). A party must remove an action within thirty days and
section 1446(b) provides when that thirty-day limitation
begins to run. 28 U.S.C. § 1446(b).
when a party removes a case under the Class Action Fairness
Act (“CAFA”), there is an alternative thirty-day
window for which the time limit begins to run once a
defendant first ascertains that a case is removable. See
Roth v. CHA Hollywood Med. Ctr., L.P., 720 F.3d 1121,
1126 (9th Cir. 2006).
Removal of Civil Actions Under 28 ...