Newport Property Investments, LLC v. David Wilson et al
Filing
10
MINUTES OF IN CHAMBERS ORDER held before Judge Valerie Baker Fairbank: re: COURT ORDER DENYING EMERGENCY RESTRAINING ORDER EX PARTE APPLICATION 9 . The Court has received the Emergency Restraining Order Ex Parte Application filed by Defendant David Wilson, pro per, on November 3, 2008. The Court denies the Ex Parte, and remands the case to state court because Defendant, as the party that removed the case from state court, has not met his burden of establishing subject matter jurisdiction. ORDER by Judge Valerie Baker Fairbank remanding case to Los Angeles Superior Court, Case number 08B05615. (kbr)
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JS6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES GENERAL Case No.
Title: PRESENT:
CV 086465VBF (RCx)
Dated: November 3, 2008
Newport Property Investments, LLC v. David Wilson, Does 110 HONORABLE VALERIE BAKER FAIRBANK, U.S. DISTRICT JUDGE Rita Sanchez Courtroom Deputy None Present Court Reporter ATTORNEYS PRESENT FOR DEFENDANTS: None Present COURT ORDER DENYING EMERGENCY RESTRAINING ORDER EX PARTE APPLICATION [dck#9], AND REMANDING CASE TO STATE COURT
ATTORNEYS PRESENT FOR PLAINTIFFS: None Present PROCEEDINGS (IN CHAMBERS):
The Court has received the Emergency Restraining Order Ex Parte Application filed by Defendant David Wilson, pro per, on November 3, 2008. As explained below, the Court denies the Ex Parte, and remands the case to state court because Defendant, as the party that removed the case from state court, has not met his burden of establishing subject matter jurisdiction. By way of background, on October 1, 2008, the Court issued a Minute Order: (1) noting that Defendants removal notice improperly alleged federal question jurisdiction on the basis of Defendants counterclaims, and (2) setting an Order to Show Cause (OSC) re MINUTES FORM 90 CIVIL GEN Initials of Deputy Clerk rs
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why the case should not be remanded to state court, ordering the parties to file simultaneous responses no later than October 7, 2008. On October 3, Defendant filed a response to the OSC. On October 7, Plaintiff also filed a response, which the Court rejected for failure to comply with the Courts electronic filing requirements. On October 17, the Defendant filed a Response and Objection to Plaintiffs Response. Plaintiff never refiled its response, so the Court has not read or received that filing. In his October 3 response, Defendant contends that diversity jurisdiction exists because Newport Property Investments, LLC, although not disclosed or documented in their state court records, is an Alaska Limited Liability Corporation . . . (2:14). The October 3 response also states: Additionally, the California Secretary of State Corporations Business Portal, [sic] documents the plaintiff, Newport Property Investments, LLC, as a California Limited Liability Corporation . . . but claiming Alaska jurisdiction . . . . (2:1115).
A notice of removal based on diversity must state the citizenship of all parties. In the case of a party that is an LLC or partnership, the notice must state the citizenship of all of the members/partners of each entity. See Schwarzer, Tashima, Wagstaffe, California Practice Guide Federal Civil Procedure Before Trial (The Rutter Group 2008) § 2.967 (citing Rolling Greens MHP, L.P. v. Comcast SCH Holding L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004)); also, McCune Motors v. New Century Buildings, LLC, 2008 U.S. District. LEXIS 16850, *3 (S.D.Cal. March 5, 2008). Defendant does not allege the citizenship of the members of Newport Property Investments, LLC. (The membership information set forth on Exhibit 2 to the response, identifying the Dharod Family Trust as the sole member of the LLC, is insufficient.) Defendant, as the removing party, has the burden of establishing subject matter jurisdiction. See Schwarzer, § 2:609. Accordingly, Defendants response to the OSC is inadequate. The Notice of Removal cannot be amended to add a separate basis for removal jurisdiction after the thirty day period [after defendant is served with the complaint]. Arco Environmental Remediation, L.L.C., v. Dept of Health and Envtl Quality of the State of Montana, 213 F.3d 1108, 1117 (9th Cir. May 24, 2000). Here, Plaintiff filed its complaint in state court on September 15, 2008, and Defendant filed his notice of removal on October 1, 2008. MINUTES FORM 90 CIVIL GEN Initials of Deputy Clerk rs
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Therefore, the 30day window has closed to add a new basis for removal jurisdiction. As stated above, the original basis for removal jurisdiction was federal question, so amendment would entail adding a new basis for jurisdiction, rather than merely curing a defective allegation of jurisdiction. See id. Accordingly, the Court denies the Ex Parte and remands this case to state court for lack of subject matter jurisdiction.
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