United States District Court, C.D. California
Present: The Honorable STEPHEN V. WILSON, U.S. DISTRICT JUDGE
IN CHAMBERS ORDER GRANTING PLAINTIFF'S MOTION TO REMAND
March 8, 2019, Plaintiff Jesse Meoli filed the instant suit
against Defendant BMW of North America, LLC and on March 19,
2019, Plaintiff served Defendant the Complaint by personal
service. Dkt. 10 at 1-2. On May 9, 2019, Defendant filed its
Notice of Removal. Dkt. 1. The alleged basis for removal was
diversity of citizenship. Id. at 3. Plaintiff now
moves to remand the action to state court on the ground that
Defendant did not timely file its Notice of Removal under 28
U.S.C. § 1446. Dkt. 10 at 2.
States federal courts are courts of limited jurisdiction.
Gunn v. Minton, 568 U.S. 251, 256 (2013).
Consequently, a “federal court is presumed to lack
jurisdiction in a particular case unless the contrary
affirmatively appears.” Stock West, Inc. v.
Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir.
1989). Due to this presumption, federal courts must exercise
“prudence and restraint” when considering the
propriety of removal. Merrell Dow Pharm. Inc. v.
Thompson, 478 U.S. 804, 810 (1986). Thus, “[i]f a
district court determines at any time that less than a
preponderance of the evidence supports the right of removal,
it must remand the action to the state court.”
Hansen v. Grp. Health Coop., 902 F.3d 1051, 1057
(9th Cir. 2018). “The removing defendant bears the
burden of overcoming the ‘strong presumption against
removal jurisdiction.'” Id. (quoting
Geographic Expeditions, Inc. v. Estate of Lhotka ex rel.
Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010)).
plaintiff elects to file an action in state court, the
defendant generally has the option of removing the case from
state court to federal court under the general removal
statute as long as the federal court has original
subject-matter jurisdiction. 28 U.S.C. § 1441(a). There
are, however, procedures for proper removal. For example, the
“notice of removal of a civil action or proceeding
shall be filed within 30 days after the receipt by the
defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon
which such action or proceeding is based.” 28 U.S.C.
Ninth Circuit has held that “notice of removability
under § 1446(b) is determined through examination of the
four corners of the applicable pleadings, not through
subjective knowledge or a duty to make further
inquiry.” Harris v. Bankers Life & Cas.
Co., 425 F.3d 689, 694 (9th Cir. 2005). Although
“defendants need not make extrapolations or engage in
guesswork . . . [Section 1446(b)] ‘requires a defendant
to apply a reasonable amount of intelligence in ascertaining
removability.'” Kuxhausen v. BMW Fin. Servs. NA
LLC, 707 F.3d 1136, 1140 (9th Cir. 2013) (quoting
Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 206
(2d Cir. 2001)). “Multiplying figures clearly stated in
a complaint is an aspect of that duty.” Id.
“the case stated by the initial pleading is not
removable, a notice of removal may be filed within 30 days
after receipt by the defendant . . . of a copy of an amended
pleading . . . or other paper from which it may first be
ascertained that the case is one which is or has become
removable.” 28 U.S.C. § 1446(b)(3). If a party
moves to remand a case to state court on the ground of
improper removal procedure, it must do so within thirty days
after the filing of the notice of removal. 28 U.S.C. §
initial matter, Defendant contends that the thirty-day
removal period started on April 15, 2019 and not on March 19,
2019. Dkt. 12 at 3-5. Defendant argues that although it was
served with the Complaint on March 19, 2019, counsel for
Defendant did not receive the Complaint until April 15, 2019,
making April 15 the soonest Defendant could have been placed
on notice of the matter's removability. Id.
Under this theory, since May 9 (the date of removal) is
within thirty days of April 15, Defendant timely removed the
action. Id. This argument is incorrect. 28 U.S.C.
§ 1446(b)(1) clearly states that the thirty-day removal
period begins upon receipt by a defendant, through service or
otherwise, of a complaint-and not upon receipt by the
defendant's counsel. Defendant offers no authority to the
further contends that the thirty-day period for removal could
not have begun on March 19, 2019 because Plaintiff's
Complaint does not provide enough information to alert
Defendant of the removability of the case. Dkt. 12 at 3-5.
Defendant argues that Plaintiff must have also provided the
subject vehicle's Sales/Lease Agreement in order for it
to determine that the matter in controversy exceeds the $75,
000 amount in controversy required for diversity
jurisdiction. Id. Although Defendant allegedly
immediately attempted to obtain the Sales/Lease Agreement
from the dealer who sold the subject vehicle to Plaintiff,
Valencia BMW, the dealer refused to provide the documents
informally. Id. at 4. Defendant also
alleges that Plaintiff's motion to quash the subpoena of
Valencia BMW further prevented Defendant from obtaining the
Sales/Lease Agreement. Id. Thus, Defendant's
counsel researched the MSRP of the subject vehicle on May 6,
2019, which it discovered to be $63, 095. Id.
Defendant argues that by multiplying the MSRP by three in
order to calculate civil penalties, Defendant for the first
time had knowledge that the matter in controversy exceeded
$75, 000 and that the case could be removed. Id.
Defendant thus concludes it timely removed within thirty days
of ascertaining that the case was removable. Id. at
argument fails because the Complaint contains sufficient
information to have placed Defendant on notice of
removability. First, the Complaint specified the unique
Vehicle Identification Number (“VIN”) assigned to
the subject vehicle as well as the subject vehicle's
model. See Dkt. 1-2. Defendant could easily use the
VIN or model information to obtain the value of the subject
vehicle. It strains credulity to argue that Defendant's
research on May 6, 2019 gave it new information that allowed
it to ascertain that this case is removable, given that the
VIN and model information were already in Defendant's
possession. A simple search of a VIN or model information
already known to Defendant is merely acting in accord with
the “reasonable amount of intelligence” standard.
Kuxhausen, 707 F.3d at 1140 (quoting
Whitaker, 261 F.3d at 206). Second, the Complaint
also specifically stated that the total consideration for the
vehicle was approximately $60, 000. Dkt 1-2 ¶ 6. $60,
000, when multiplied by three for the purpose of calculating
civil penalties, exceeds the $75, 000 requirement for
diversity jurisdiction. The additional $3, 095 discovered by
Defendant's research does not affect the result. Since
multiplying figures clearly stated in a complaint to
ascertain the amount in controversy is a duty required by the
“reasonable amount of intelligence” standard,
Defendant had notice of removability under Section 1446(b)
when served with the Complaint on March 19, 2019.
Kuxhausen, 707 F.3d at 1140 (quoting
Whitaker, 261 F.3d at 206). Defendant did not file
its Notice of Removal until May 9, 2019. Therefore,
Defendant's removal took place after the thirty-day
removal period expired and was untimely.