United States District Court, C.D. California
John Lee, et al.
BMW of North America, LLC
Present: The Honorable James V. Selna, U.S. District Court
CIVIL MINUTES - GENERAL
[IN CHAMBERS] Order Regarding Motion to
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.
following reasons, the Court DENIES the
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.
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
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).
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).
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.
BMW NA's Removal Was Timely
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 ...