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Lee v. BMW of North America, LLC

United States District Court, C.D. California

December 16, 2019

John Lee, et al.
v.
BMW of North America, LLC

          Present: The Honorable James V. Selna, U.S. District Court Judge

          CIVIL MINUTES - GENERAL

         Proceedings: [IN CHAMBERS] Order Regarding Motion to Remand

         Plaintiffs John Lee (“J. Lee”) and Min Soon Lee (“M. Lee”) (collectively, “Plaintiffs”) move to remand this action to State Court. Mot., Docket No. 9. Defendant BMW of North America, LLC (“BMW NA”) opposes. Opp'n., Docket No. 13. Plaintiffs replied. Reply, Docket No. 16.

         For the following reasons, the Court DENIES the Motion.

         I. Background

         On July 22, 2019, Plaintiffs brought sought against BMW NA in the Superior Court of the State of California, County of Orange (No. 30-2019-01075260-CU-BC-CJC), alleging two violations of the Song-Beverly Consumer Warranty Act (“Song-Beverly”). Compl., Docket No. 1, Ex. A. BMW NA removed this action to this Court on September 9, 2019 on the basis of diversity jurisdiction. Not. Removal, Docket No. 1. Plaintiffs reside in La Habra, California. Compl., ¶ 1. BMW NA is a limited liability company organized in Delaware with its principal place of business in the New Jersey. Id., ¶ 12. Each of BMW NA's members are citizens of New Jersey. Id.

         The Complaint alleges that on or about July 13, 2016, Plaintiffs purchased a certified pre-owned 2014 BMW 750Li, a vehicle manufactured and/or distributed by BMW NA for approximately $101, 000 (the “Vehicle”). Compl. ¶¶ 5-6. Plaintiffs received express and implied warranties from BMW NA in connection with their purchase. Id. at ¶ 8. Plaintiffs have submitted the Vehicle for certain defects, specifically for problems with engine malfunction, excessive oil consumption, and engine idle issues. Id. at ¶ 11. Plaintiffs seek replacement or restitution, incidental damages, consequential damages, civil penalty as provided in Song-Beverly, attorney's fees, costs and expenses, the difference in value of the vehicle as accepted and the vehicle had it been as warranted, remedies provided in Chapters 6 and 7 of Division 2 of the Commercial Code, and pre-judgment interest. Id. at 9, Prayer for Relief.

         II. Legal Standard

         Under 28 U.S.C. § 1441(a), a defendant may remove a civil action from state court to federal court if the parties may have originally filed the case in federal court. City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 163, (1997). Where removal is based on diversity, (1) the citizenship of the plaintiff must differ from the citizenship of all defendants and (2) the amount in controversy must exceed $75, 000, exclusive of interest and costs. 28 U.S.C. § 1332(a). District courts have diversity jurisdiction over “citizens of a State and citizens or subjects of a foreign state.” 28 U.S.C. § 1332(a)(2). District courts, however “shall not have original jurisdiction under [section 1332(a)(2)] of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State.” Id. (emphasis added).

         The Ninth Circuit has directed courts to “strictly construe the removal statute against removal jurisdiction, ” so that any doubt as to the right of removal is resolved in favor of remanding the case to state court.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Thus, the removing party bears the burden to demonstrate that removal was proper. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988).

         III. Discussion

         Plaintiffs first argue that removal was not timely because it was filed 31 days after service of the Complaint and thus was one day late. Mot. 2; David N. Barry Decl. ¶ 4, Docket No. 9-1. Plaintiffs further argue that BMW NA has failed to demonstrate that complete diversity exists and the amount in controversy exceeds $75, 000. Id. at 2-4. BMW NA first contends that Plaintiffs have waived their timeliness argument by failing to seek remand within the 30-day time limit under 28 U.S.C. § 1447(c). Opp'n., 2-3. BMW NA next argues that notwithstanding Plaintiffs' waiver, BMW NA's removal was timely under 28 U.S.C. 1446(b)(3). Id. at 3. BMW NA finally argues that removal was proper because there is complete diversity and the amount in controversy exceeds $75, 000. Id. at 3-8.

         A. BMW NA's Removal Was Timely

         Plaintiffs served BMW NA on August 9, 2019. Mot. at 2. The 30-day limit would therefore be September 8, 2019; however, as BMW NA notes in its opposition, September 8, 2019 was a Sunday. Opp'n. at 3. Therefore, the deadline the Notice of Removal was the next court ...


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