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Beckman v. Wal-Mart Stores, Inc.

United States District Court, S.D. California

February 26, 2018

GINA BECKMAN, individually and on behalf of all others similarly situated, Plaintiff,
WAL-MART STORES, INC., et al., Defendants.



         Presently 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.)

         The 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 Superior Court.

         I. BACKGROUND

         On June 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.)

         On 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.)

         In an 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.” (Id.)

         On 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.)

         Instead 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.)

         On 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.)


         “[A]ny 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).

         Additionally, 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).

         A. Removal of Civil Actions Under 28 ...

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