United States District Court, N.D. California, San Jose Division
ORDER DENYING PLAINTIFF'S MOTION TO REMAND [Re:
LAB SON FREEMAN UNITED STATES DISTRICT JUDGE
the Court is Plaintiff Janice Mann's motion to remand the
action to state court. Mot., ECF 12. Pursuant to Civil Local
Rule 7-1(b), the Court takes this matter under submission
without oral argument and VACATES the hearing scheduled for
September 27, 2018. For the reasons discussed below,
Mann's motion to remand is DENIED.
action was initially filed in the Santa Cruz Superior Court.
On April 9, 2018, Defendant Garden of Life, LLC
(“Garden of Life”) removed the action to this
District based on diversity jurisdiction. Notice of Removal,
ECF 1. On May 3, 2018, Mann filed the instant motion based on
two reasons: lack of diversity jurisdiction and failure to
obtain all defendants' consent to removal.
Mann argues that Garden of Life has not established that
diversity jurisdiction exists in this action. Mot. 3. As Mann
points out, diversity jurisdiction under 28 U.S.C. §
1332(a)(1) requires that the action is between
“citizens of different States.” And when a
defendant in the action is a Limited Liability Corporation
(“LLC”), the moving defendant must set forth the
citizenship of the owners/members of the LLC. Johnson v.
Columbia Properties Anchorage, LP, 437 F.3d 894, 899
(9th Cir. 2006) (“[A]n LLC is a citizen of every state
of which its owners/members are citizens.”). Mann
asserts that Garden of Life's removal of this action was
improper because its Notice of Removal fails to show the
citizenship of Defendants Garden of Life, LLC and Atrium
Biotech Investments, LLC's members or owners. Mot. 4.
of Life responds that its Amended Notice of Removal
identifies the citizenship of all defendants including Garden
of Life, LLC and Atrium Biotech Investments,
Opp'n 5, ECF 16. The Amended Notice of Removal states
(1) Garden of Life, LLC is a wholly owned subsidiary of
Atrium Biotech Investments, LLC, “i.e., the only
‘member' of Garden of Life, LLC is Atrium Biotech
Investments, LLC.” Amended Notice of Removal ¶ 6,
(2) Atrium Biotech Investments, LLC is a wholly owned
subsidiary of Atrium Biotech HoldCo, LLC, “i.e., the
only ‘member' of Atrium Biotech Investments, LLC is
Atrium Biotech HoldCo, LLC.” Id. ¶ 8.
(3) Atrium Biotech HoldCo, LLC is a wholly owned subsidiary
of Atrium Innovations, Inc., “i.e., the only
‘member' of Atrium Biotech HoldCo, LLC is Atrium
Innovations, Inc.” Id. ¶ 9.
(4) Atrium Innovations, Inc. is a Canadian corporation with
its principal place of business in Quebec, Canada.
Id. ¶ 10.
contends that the Amended Notice of Removal is still
deficient because it merely states that “another
company is a ‘member.”” Reply 4, ECF 17.
Mann also claims that the Amended Notice of Removal's
placement of the term “member” in quotation marks
makes the meaning of that term unclear whether Garden of Life
is referring to “actual members” or something
Court disagrees with Mann's contention. As set forth
above, the Amended Notice of Removal makes clear that each
LLC is wholly owned by the respective parent LLC or
corporation. Because an LLC takes the citizenship of its
owners and members, Johnson, 437 F.3d at 899, a
wholly owned LLC has the citizenship of its parent LLC or
corporation. The chain of ownership described above makes it
clear that the citizenship of Garden of Life, LLC, Atrium
Biotech Investments, LLC, and Atrium Biotech HoldCo, LLC can
be traced to Canada. On the other hand, Mann is a citizen of
California. Amended Notice of Removal ¶ 5. Thus, the
Amended Notice of Removal provides that Mann has a different
citizenship from the LLC Defendants. On this basis, the Court
finds that Garden of Life has established that diversity
Mann argues that Garden of Life has failed to show that all
defendants have consented to the removal of this action.
See Mot. 4; Reply 5. 28 U.S.C. § 1446(b)(2)(A)
provides that “[w]hen a civil action is removed solely
under section 1441(a), all defendants who have been properly
joined and served must join in or consent to the removal of
the action.” Mann contends that Garden of Life has
“failed to make any such showing.” Mot. 4.
of Life responds that it did not need the consent of other
defendants in this case because they were not served at the
time of removal. Opp'n 6. Indeed, a removing defendant
need not obtain the consent of defendants who were served
after the filing of the notice of removal. Cachet
Residential Builders, Inc. v. Gemini Ins. Co., 547
F.Supp.2d 1028, 1032 (D. Ariz. 2007). Mann does not dispute
Garden of Life's representation that it was the only
defendant that was served on the date the Notice of Removal
was filed. Accordingly, the Court finds that Garden of Life
did not need to obtain consent of other defendants and thus
has satisfied the consent requirement set forth in §
1446(b)(2)(A) when the Notice of Removal was filed.
above reasons, the Court is unpersuaded by Mann's
arguments that removal of this action was improper.
Therefore, Mann's motion to ...