United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION TO REMAND AND
DISMISSING THE CASE WITHOUT PREJUDICE (DOC. NO. 19)
matter is before the court on plaintiff Gabriel
Martinez's (“plaintiff”) motion to remand.
(Doc. No. 19.) The court finds that this matter is
appropriate for a decision without oral argument. Having
considered the papers filed in support and in opposition to
this motion, the court will deny plaintiff's motion to
remand and dismiss this case without prejudice.
initiated this action on November 16, 2018, by filing his
complaint with this court. (Doc. No. 1.) The case now
proceeds on plaintiff's first amended complaint
(“FAC”) against defendant Nestle Dreyer's Ice
Cream Company (“defendant”), filed December 10,
2018. (Doc. No. 7.) Plaintiff's FAC alleges that he is a
citizen of California, and defendant is a citizen of
Delaware. (Id. at 1-2.) Plaintiff asserts four
causes of action related to his employment with defendant,
all of which arise under California law. (Id.)
Defendant filed an answer on December 20, 2018. (Doc. No. 8.)
Defendant's answer admits that it is a Delaware
corporation and that it conducts business in Kern County,
California. (Id. at 2.)
27, 2019, plaintiff filed a motion to remand. (Doc. No. 19.)
Therein, plaintiff argues that defendant has a principal
place of business in California and is therefore a California
citizen. (Id. at 4-5.) Accordingly, plaintiff
concludes that this court lacks subject matter jurisdiction
because there is no diversity between the parties, and all of
his causes of action arise under California law.
(Id. at 3-4.) Plaintiff therefore requests that this
court remand the matter to a California Superior Court even
though, as noted above, this case was originally filed by him
in federal court. (Id. at 5.)
28, 2019, defendant filed an opposition to plaintiff's
motion to remand. (Doc. No. 20.) Defendant argues that
plaintiff's motion must be denied because plaintiff
originally filed this action in federal court. (Id.
at 2.) On July 2, 2019, plaintiff filed a reply. (Doc. No.
21.) Plaintiff argues that this court must remand the case to
state court or in the alternative, dismiss the case without
prejudice. (Id. at 5-6.)
courts may only issue an order to remand “[i]n any case
removed from a State court . . ..” 28 U.S.C. §
1447(a). Federal courts that have considered motions to
remand brought under circumstances similar to those in this
case have concluded that they lack authority to remand a case
to state court if it was originally filed in federal court.
See Bradgate Assoc., Inc. v. Fellows, Read & Assoc.,
Inc., 999 F.2d 745, 751 (3rd Cir. 1993) (reviewing a
district court's order to remand a consolidated case and
holding that “the district court should have remanded
the removed case to state court and dismissed the case
[plaintiff] originally filed in federal court.”);
Ngoc Lam Che v. San Jose/Evergreen Cmty. Coll. Dist.
Found., No. 17-cv-00381-BLF, 2017 WL 2954647, at *3
(N.D. Cal. July 11, 2017) (“As an initial matter, this
Court could not remand Che's state law claim even if it
were to dismiss Che's ADA claim, because this action was
originally filed in federal court.”); Harbord v.
Bean, No. C17-349RSL, 2017 WL 2081072, at *1 (W.D. Wash.
May 15, 2017) (“[T]his Court lacks the authority to
remand a case that originated in federal court.”),
aff'd, No. 17-35498, 2017 WL 6345784 (9th Cir.
Oct. 12, 2017); Fuse v. Ariz. Bd. of Regents, No. CV
07-2351-PHX-FJM, 2009 WL 837645, at *1 (D. Ariz. Mar. 27,
2009) (“[W]e cannot remand plaintiffs claims to state
court because this action was originally filed in federal
plaintiff himself initiated this action by filing his
complaint in federal court, but now seeks to remand the case
to state court pursuant to 28 U.S.C. § 1447(c).
(See Doc. No. 19 at 2.) This case, however, was not
removed by defendant to this court. (See Doc. No.
1.) Therefore, this court lacks the authority to remand the
case to state court. Nonetheless, because both parties
acknowledge that this court lacks subject matter jurisdiction
over this action (see Doc. Nos. 19 at 3; 20 at 3),
the court will dismiss the case without prejudice to its
refiling in state court.
1. Plaintiffs motion remand (Doc. No. 19) is denied;
Plaintiff s alternative request for dismissal of this action
without prejudice due to lack of subject matter jurisdiction
is granted; and
Clerk of the Court is ...