United States District Court, N.D. California
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND RE:
DKT. NO. 13
PHYLLIS J. HAMILTON UNITED STATES DISTRICT JUDGE.
Jennifer Venezia's (“plaintiff”) motion for
remand came on for hearing before this court on December 11,
2019. Plaintiff appeared through her counsel, Steven Kesten
and Steven Sattler. Defendants Muir Wood Adolescent &
Family Services, LLC (“defendant Muir Wood Adolescent
LLC”), Muir Wood LLC (“defendant Muir Wood
LLC”), Scott Sowle (“defendant Sowle”), and
Bryan Bowen (“defendant Bowen”) (collectively,
“defendants”) appeared through their counsel,
Annie Lau. Having read the papers filed by the parties and
carefully considered their arguments and the relevant legal
authority, and good cause appearing, the court hereby
GRANTS plaintiff's motion to remand for
the reasons provided below and at the hearing.
Correspondingly, the court TERMINATES
without decision defendants' respective motions to
dismiss (Dkt. 7-10).
September 10, 2019, plaintiff initiated this action against
defendants in Marin County Superior County. Dkt. 1, Ex. A.
(Compl.). In her complaint, plaintiff alleges various tort
and employment-related claims arising out of defendants'
purportedly inducing her to leave Illinois for employment in
Marin County and subsequent discrimination on the basis of
her medical conditions. On October 25, 2019, shortly after
this action's removal on October 18, 2019, defendants
filed four respective motions to dismiss for failure to state
a claim under Rule 12(b)(6). Dkt. 7-10. On November 8, 2019,
plaintiff filed the instant motion to remand. Dkt. 13.
filed their notice of removal on the basis of diversity
jurisdiction under Title 28 U.S.C. § 1332. Dkt. 1. In
it, they assert various jurisdictional facts that are
dispositive of the instant motion to remand. In particular,
defendants offer testimonial evidence that defendant Muir
Wood Adolescent LLC and defendant Muir Wood LLC are, and at
the time of removal were, California limited liability
companies with their principal places of business in Sonoma
County. Dkt. 1-5 ¶¶ 3, 5. They further assert that
defendant Sowle and defendant Bowen are, and at the time of
removal were, citizens of California. Dkt. 1-4 ¶ 3; Dkt.
1-3 ¶ 3. At oral argument, counsel for defendants did
not dispute these assertions.
this action's removal, plaintiff has filed a joint
stipulation to continue the hearing on defendants'
motions to dismiss (Dkt. 12), two combined oppositions in
response to such motions (Dkt. 16 and Dkt. 17), and two
filings in connection with the instant motion (Dkt. 13 and
federal district court has original jurisdiction over all
civil actions where the amount in controversy exceeds $75,
000 and is between citizens of different states. 28 U.S.C.
§ 1332(a)(1) (“The district courts shall have
original jurisdiction of all civil actions where the matter
in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs, and is between . . .
citizens of different States”). As a general matter, a
defendant may remove an action to federal court if such court
would have original jurisdiction over such action. 28 U.S.C.
§ 1441(a) (“Except as otherwise expressly provided
by Act of Congress, any civil action brought in a State court
of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending.”).
28 U.S.C. § 1441(b)(2), however, provides that an action
may not be removed solely on diversity grounds if any served
defendant to such action is a citizen of the forum state. 28
U.S.C. § 1441(b)(2) (“A civil action otherwise
removable solely on the basis of the jurisdiction under
section 1332(a) of this title may not be removed if any of
the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is
brought.”); Spencer v. U.S. Dist. Court for N.
Dist. of Ca., 393 F.3d 867, 870 (9th Cir. 2004)
(“It is thus clear that the presence of a local
defendant at the time removal is sought bars removal.”)
(citing Title 28 U.S.C. § 1441(b)). The Ninth Circuit
has remarked that this subsection, also known as “the
forum defendant” rule, “reflects the belief that
federal diversity jurisdiction is unnecessary because there
is less reason to fear state court prejudice against the
defendants if one or more of them is from the forum
state.” Spencer, 393 F.3d at 870 citing Erwin
Chemerinsky, Federal Jurisdiction § 5.5, at 345
(4th ed. 2003). The Ninth Circuit has further remarked that
“[t]he forum defendant rule of 28 U.S.C. § 1441(b)
is only applicable at the time a notice of removal is
filed.” Id. at 871.
removing party's failure to comply with Title 28 U.S.C.
§ 1441(b)(2) is a procedural defect, not a
jurisdictional one. Lively v. Wild Oats Markets,
Inc., 456 F.3d 933, 939 (9th Cir. 2006) (“[Title
28 U.S.C.] §1441(b) confines removal on the basis of
diversity jurisdiction to instances where no defendant is a
citizen of the forum state. As explained below, we hold that
this additional limitation on diversity-based removal
jurisdiction is a procedural, or non-jurisdictional,
rule.”). Given the procedural nature of such defect, a
plaintiff may waive her ability to challenge it. Lively
v. Wild Oats Markets, Inc., 456 F.3d 933, 942 (9th Cir.
2006) (“We hold that the forum defendant rule embodied
in § 1441(b) is a procedural requirement, and thus a
violation of this rule constitutes a waivable
non-jurisdictional defect subject to the 30-day time limit
imposed by § 1447(c).”).
have acknowledged that a plaintiff may waive her ability to
challenge a procedural defect in removal when, following
removal, a plaintiff participates in certain
“affirmative conduct or unequivocal assent of a sort
which would render it offensive to fundamental principles of
fairness to remand.” Barahona v. Orkin, 2008
WL 4724054, at *3 (C.D. Cal. Oct. 21, 2008); Alarcon v.
Shim Inc., 2007 WL 2701930, at *2 (N.D. Cal. Sept. 13,
2007) (“The type of post-removal conduct that has been
held to constitute waiver of the right to remand is
affirmative conduct or unequivocal assent of a sort which
would render it offensive to fundamental principles of
fairness to remand”).
defendants removed this action from Marin County Superior
Court in violation of Title 28 U.S.C. § 1441(b)(2)
because they are all citizens of the action's forum
state, California. Defendants do not dispute such violation.
At oral argument, counsel for defendants characterized the
removal as an oversight and acknowledged that there was no
basis to remove the case. ...