United States District Court, N.D. California
ORDER GRANTING MOTION TO REMAND RE: DKT. NO.
H. ORRICK UNITED STATES DISTRICT JUDGE
Michael Neky filed suit in San Mateo County Superior Court
against defendant Costco Wholesale Corporation
(“Costco”) alleging negligence and premises
liability. Costco removed the case to federal court based on
diversity jurisdiction, and Neky has filed a motion to
remand. Because Costco's Notice of Removal was filed
outside of the 30-day window allowed by 28 U.S.C. §
1446(b)(3), the Motion to Remand is GRANTED.
January 19, 2017, while working for Heartland Express, Inc.,
Neky made a delivery to a Costco-owned property in Foster
City, California. Complaint, Ex. A to the Notice of Removal
[Dkt. No. 1-1] (“Compl.”) ¶ 6. During the
delivery, he slipped and fell on a wet area of the
property's delivery docks, sustaining severe personal
injuries. Id. at ¶ 7. He alleges that
Costoco's negligence and failure to maintain the property
were the proximate causes of his fall and subsequent
injuries. Id. at ¶ 8.
filed suit in state court on January 17, 2019, alleging
negligence and premises liability against the defendant. In
his Complaint, Neky requests general damages, special
damages, loss of earnings, and other costs in an unspecified
amount. Id. On March 1, 2019, Costco's
registered agent was personally served with summons, a copy
of the Complaint, and other papers, including plaintiff's
Statement of Damages enumerating over $1 million in general
and specific damages. Proof of Service of Summons and
Statement of Damages, attached at Ex. A to the Notice of
Removal [Dkt. No. 1-1 at ECF Pgs. 15-17 of 40]. The Proof of
Service was signed by the process server on March 7, 2019,
and was filed with the Superior Court on March 25, 2019. Dkt.
No. 1-1 ECF Pg. 15. Costco filed an answer to the Complaint
on April 15, 2019. Dkt. No. 1-1 ECF pgs. 18-21 of 40.
30, 2019, Costco's counsel of record received an
Application for Lien from Heartland Express, Inc., claiming
and applying for a lien of $116, 048.00. Notice of Removal
[Dkt. No. 1] 2-3. The Application for Lien states that
“[a]s a proximate result of the injuries to plaintiff .
. . [Heartland Express, Inc.] has paid to and on behalf of
plaintiff, the minimum sum of $116, 048.00, as and for
workers' compensation benefits and medical care and
temporary and/or permanent disability indemnity.”
28, 2019, Costco removed the case to this court on the basis
of diversity jurisdiction. Id. On July 26, 2019,
Neky filed a motion to remand, asserting that removal was
improper because there is not complete diversity among the
parties and the Notice of Removal was untimely. Dkt. No. 6.
defendant may remove a case from state to federal court by
filing a notice of removal that lays out the grounds for
removal. 28 U.S.C. § 1441(a). A “notice of removal
may be filed within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended
pleading, motion, order 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). The
removal statute's “time limit is mandatory and a
timely objection to a late petition will defeat removal. . .
.” Fristoe v. Reynolds Metals Co., 615 F.2d
1209, 1212 (9th Cir. 1980).
filed the Notice of Removal on June 28, 2019, after its
counsel received the Application for Lien on May 30, 2019.
Dkt. No. 1. It claims the Application for Lien was the first
indicator that the case involved an amount in controversy
above the $75, 000 threshold for diversity jurisdiction.
Costco's Opposition to Motion to Remand 3, 6-8 [Dkt. No.
11]. However, Neky points out that Costco was served with the
Statement of Damages seeking a total of $1, 525, 000.00 in
damages on March 1, 2019. Motion to Remand 3 [Dkt. No. 6],
Dkt. No. 1-1 at ECF pgs. 14-17. Because Costco filed the
Notice of Removal more than 30 days after March 1, 2019, Neky
argues the Notice was untimely and therefore invalid.
Id. at 4-5.
defendant must file its notice of removal, including “a
short and plain statement of the grounds for removal, ”
within 30 days of receiving the initial pleading. 28 U.S.C.
§ 1446. If the initial pleading does not appear
removable on its face, the defendant may file a notice of
removal “within 30 days after receipt . . ., through
service or otherwise, of a copy of an amended pleading,
motion, order 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 notice of
removal is filed outside the 30-day limit and the opposing
party objects in a timely manner, removal is defeated.
Fristoe, 615 F.2d at 1212.
failed to file its Notice of Removal within 30 days of being
served with plaintiff's Statement of Damages, making
removal untimely. Although the Complaint did not indicate a
specific amount in controversy, the Statement of Damages that
was served with the Complaint outlined general and specific
damages of $1, 525, 000.00. Statement of Damages, Dkt. No.
1-1 at ECF pgs. 14-17. Statements of damages, like the one
here, are considered “the functional equivalent of an
amendment to a complaint.” Plotitsa ...