United States District Court, C.D. California
PRESENT: THE HONORABLE R. GARY KLAUSNER, UNITED STATES
CIVIL MINUTES - GENERAL
IN CHAMBERS - COURT ORDER
the Court is a Notice of Removal filed on December 2, 2019,
by Defendant Mercedes-Benz USA, LLC
(“Defendant”). Defendant asserts that this Court
has subject matter jurisdiction on the basis of the
Court's diversity jurisdiction under 28 U.S.C. §
1332 and the Court's federal question jurisdiction under
28 U.S.C. § 1331.
courts are courts of limited jurisdiction, having subject
matter jurisdiction only over matters authorized by the
Constitution and Congress. See, e.g., Kokkonen
v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct.
1673, 1675, 128 L.Ed.2d 391 (1994). A suit filed in state
court may be removed to federal court if the federal court
would have had original jurisdiction over the suit. 28 U.S.C.
§ 1441(a). A removed action must be remanded to state
court if the federal court lacks subject matter jurisdiction.
28 U.S.C. § 1447(c). “The removal statute is
strictly construed against removal jurisdiction, and the
burden of establishing federal jurisdiction falls to the
party invoking the statute.” California ex rel.
Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir.
2004) (citing Ethridge v. Harbor House Rest., 861
F.2d 1389, 1393 (9th Cir. 1988)). “Federal jurisdiction
must be rejected if there is any doubt as to the right of
removal in the first instance.” Gaus v. Miles,
Inc., 980 F.2d 564, 566 (9th Cir. 1992). “The
defendant also has the burden of showing that it has complied
with the procedural requirements for removal.”
Riggs v. Plaid Pantries, Inc., 233 F.Supp.2d 1260,
1264 (D. Or. 2001).
Defendant's Notice of Removal appears untimely.
“[A] proper removal notice must be filed within 30 days
of service of the plaintiff's complaint.”
Parrino v. FHP, Inc., 146 F.3d 699, 703 (9th Cir.
1998). “If the case stated by the initial pleading is
not removable, a notice of removal may be filed within thirty
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). Failure to comply with the
statutory time limit bars removal. See, e.g., N. Ill. Gas
Co. v. Airco Indus. Gases, 676 F.2d 270, 273 (7th Cir.
1982). As with all other requirements for removal
jurisdiction, the defendant bears the burden of proving the
timeliness of its removal and “[s]everal courts have
noted that the thirty-day time limit for petitioning for
removal will be strictly construed against a
defendant.” Roberson v. Orkin Exterminating
Co., 770 F.Supp. 1324, 1328 (N.D. Ind. 1991) (citations
alleges in the Notice of Removal that Plaintiff Ker Lu
(“Plaintiff”) filed this action in state court on
October 23, 2019. (Notice of Removal ¶ 1, ECF No. 1.)
The Notice of Removal also states that Plaintiff served
Defendant with a copy of the Complaint on October 29, 2019.
(Id. ¶ 3.)
Court therefore concludes that Defendant has failed to allege
sufficient facts to establish the timeliness of the filing of
the Notice of Removal. The failure to allege facts necessary
to establish the timeliness of the removal renders the
removal procedurally defective. Defendant has failed to meet
its burden of showing that it has complied with the
procedural requirements for removal. See Harris v.
Bankers Life & Cas. Co., 425 F.3d 689, 694 (9th Cir.
foregoing reasons, the Notice of Removal is procedurally
defective. See 28 U.S.C. § 1446(b)(1).
Accordingly, this action is remanded to state court for
failure to comply with the removal requirements of 28 U.S.C.
§ 1446. See 28 U.S.C. § 1447(c). The Court
stays this order until December 24, 2019. If Plaintiff wishes
to waive the procedural defect and, as a result, remain in
federal court, Plaintiff must file a Notice of Waiver of
Procedural Defects no later than December 23, 2019. If
Plaintiff does not file such a Notice, the Court will
conclude that Plaintiff has not waived the procedural defect.
After that date, the Court will remand this action to the Los
Angeles Superior Court as a result of the procedural defect
in the Notice of Removal.