Dorit Eden v. Standard Fire Insurance Company et al
Filing
23
MINUTES (IN CHAMBERS) by Judge A. Howard Matz: The Court GRANTS Plaintiff's Motion to Remand 17 . Good cause appearing therefor, the Court hereby REMANDS the action to the Los Angeles County Superior Court for lack of subject matter jurisdictio n. The clerk is directed to close this file. Defendants' request for sanctions, Opp. at 14-15, is hereby DENIED. Plaintiff's request for leave to file an Attorneys' Fees Motion, Mot. at 14, and request for sanctions against Defendants, Reply at 20, are also DENIED. No hearing is necessary. Fed. R. Civ. P. 78; Local Rule 7-15. (MD JS-6. Case Terminated.) (Attachments: # 1 CV-103 Letter of Transmittal - Remand to Superior Court) (jp)
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O; JS-6
LASC, Case No.: BC44860
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-04271 AHM (PJWx)
Title
DORIT EDEN v. STANDARD FIRE INSURANCE COMPANY, et al.
Present: The
Honorable
Date
September 6, 2011
A. HOWARD MATZ, U.S. DISTRICT JUDGE
Stephen Montes
Not Reported
Deputy Clerk
Court Reporter / Recorder
Attorneys NOT Present for Plaintiffs:
Proceedings:
Tape No.
Attorneys NOT Present for Defendants:
IN CHAMBERS (No Proceedings Held)
On October 4, 2010, Plaintiff Dorit Eden (“Plaintiff”) filed this action in Los
Angeles Superior Court. Plaintiff filed this action against Defendants Standard Fire
Insurance Company (“Standard Fire”), Travelers Property Casualty Insurance Company
(“Travelers”), Krystal Enbysk (“Enbysk”), Cheryl Gall (“Gall”), and Does 1 - 500
(collectively “Defendants”). Travelers and Standard Fire are alleged to be Plaintiff’s
insurers. Compl. ¶ 6. Enbysk, an adjuster, and Gall are alleged to be employees of
Travelers. Compl. ¶ 2. The complaint is based on alleged misconduct related to the theft
of her automobile and the handling of Plaintiff’s insurance claims. Plaintiff seeks relief
under the following causes of action: (1) breach of implied covenant of good faith and
fair dealing; (2) breach of insurance contract; (3) fraud; (4) negligent misrepresentation;
(5) intentional infliction of emotional distress; and (6) intentional interference with
contract.
On May 18, 2011, over seven months after Plaintiff filed her action in state court,
Defendants removed this action to federal district court. Defendants allege that removal
is appropriate under 18 U.S.C. § 1332, and that their removal is timely because
Defendants Enbysk and Gall were fraudulently joined, and Defendants were not able to
remove until they discovered the fraudulent joinder on May 9, 2011. Notice of Removal
(“NOR”) ¶¶ 2-3.
Before this Court is Plaintiff’s Motion to Remand.1 The Court took this Motion
under submission on July 6, 2011. Dkt. 19. For the following reasons, the Court
1
Dkt. 17.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-04271 AHM (PJWx)
Date
September 6, 2011
Title
DORIT EDEN v. STANDARD FIRE INSURANCE COMPANY, et al.
GRANTS the Motion.
I.
BACKGROUND
A.
Prior Order to Show Cause (“OSC”)
On May 25, 2011, this Court issued an OSC, Dkt. 9, to which the parties submitted
extensive responses and supplemental briefing. Dkt. 13-15. Specifically, the Court
ordered Defendants to address the following: “(1) the likelihood that the NOR [Notice of
Removal] was untimely; (2) the lack of evidence of diversity for purposes of jurisdiction
on the face of the complaint and in the NOR itself; and (3) the lack of support and
explanation of the relevance of Defendants Enbysk and Gall’s alleged fraudulent
joinder.” Dkt. 9, at 3. The Court discharged the Order on July 6, 2011, Dkt. 19, and
stated it would address the merits of the OSC in the Motion to Remand, which
encompasses all of the issues in the OSC. Dkt. 19. Defendants and Plaintiff, in this
Motion to Remand and the responsive briefs, refer to and incorporate their responses to
the OSC. Accordingly, the Court considers those responses in its analysis and cites to
them where appropriate.
B.
Receipt of Service
According to the date stamp on the Complaint attached to the NOR, Plaintiff filed
this action in the Los Angeles Superior Court on October 4, 2010. NOR Exh. A.
Defendants allege that Travelers and Standard Fire were served on November 29, 2010,
as were the dba/s for those entities. Response to OSC, at 10 & Exh. A-D. Defendants
allege in the NOR that Defendants Enbysk and Gall were served on December 19, 2010
and December 22, 2010 respectively. NOR ¶ 2a. Defendants Travelers, Standard Fire,
Enbysk, and Gall filed the NOR on May 18, 2011, well over 30 days after the later-served
defendants (Enbysk and Gall) received notice. Destfino v. Reiswig, 630 F.3d 952, 956
(9th Cir. 2011) (“[W]e hold that each defendant is entitled to thirty days to exercise his
removal rights after being served.”).
II.
LEGAL STANDARD
A federal court must determine its own jurisdiction even if there is no objection to
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-04271 AHM (PJWx)
Date
September 6, 2011
Title
DORIT EDEN v. STANDARD FIRE INSURANCE COMPANY, et al.
it. Rains v. Criterion Systems, Inc., 80 F.3d 339 (9th Cir. 1996). The removal statute is
“strictly construe[d] . . . against removal jurisdiction,” and the removing party “always
has the burden of establishing that removal was proper.” Gaus v. Miles, Inc., 980 F.2d
564, 566 (9th Cir. 1992). “Federal jurisdiction must be rejected if there is any doubt as
to the right of removal in the first instance.” Id. A removing defendant must set forth “a
short and plain statement of the grounds for removal.” 28 U.S.C. § 1446(a).
A “notice of removal of a civil action or proceeding shall be filed within thirty
days after the receipt by the defendant, through service or otherwise, of a copy of the
initial pleading . . . or within thirty days after the service of the summons . . . .” 28
U.S.C. § 1446(b). The date on which the removal period commences is the date on which
a defendant receives a copy of the complaint. See, e.g., Teitelbaum v. Soloski, 843 F.
Supp. 614, 615 (C.D. Cal. 1994). If the grounds for removal are not evident from the
face of the complaint, the notice of removal may be filed within thirty days after the
defendant receives an amended pleading, motion, order or other paper from which it can
be ascertained from the face of the document that removal is proper. Harris v. Bankers
Life & Casualty Co., 425 F.3d 689, 694 (9th Cir. 2005).
III.
DISCUSSION
Defendants contend, and Plaintiff does not dispute, that from the face of the
complaint, diversity jurisdiction was not apparent, as both Enbysk and Gall are California
citizens. Defendants contend that Plaintiff’s allegations in the complaint were
“ambiguous” and that the fraud and misrepresentation claims “could be construed to
create personal liability against those in-state defendants, particularly Enbysk,” and
therefore precluded removal. Declaration of Erwin Adler, counsel for Defendants, in
Response to OSC (“Adler Decl.”), ¶ 3.
On January 25, 2011, Enbysk and Gall filed a demurrer to the complaint. NOR
Exh. I. Defendants argue that on May 9, 2011, when the state court issued an order
sustaining that demurrer, they were first able to ascertain the propriety of removal.
Response to OSC, at 20-21 & Exh. E. Accordingly, Defendants argue that the thirty-day
removal period should begin on May 9, 2011. Id.
In their demurrer, Enbysk and Gall sought to dismiss all causes of action against
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-04271 AHM (PJWx)
Date
September 6, 2011
Title
DORIT EDEN v. STANDARD FIRE INSURANCE COMPANY, et al.
them asserted in the Complaint for “fail[ure] to state facts sufficient to constitute a cause
of action under CCP [Cal. Code of Civ. P.] § 430.10(e).” NOR Exh. I, at 72. The ruling
on the demurrer, however, which consisted of a written tentative ruling (which the parties
have not furnished to the Court) and an oral ruling, sustained demurrers only to the third,
fourth, and sixth causes of action with leave to amend, and overruled the remaining
demurrers. Adler Decl., Exh. E; Declaration of Alan Shewell, Attorney for Plaintiff, in
Opposition to Mot. to Remand (“Shewell Decl.) ¶ 18. The claim against Enbysk for
intentional infliction of emotional distress (“IIED”) was not thrown out.
Defendants argue that “[b]ecause the state court sustained the demurrer, defendants
could remove the action to this court consistent with governing standards since the
‘indeterminate’ claim did not continue to present a claim involving potential personal
liability by Ebynsk [sic].” Response to OSC, at 21. Defendants failed to show, however,
how the dismissal without prejudice of three of the causes of action against Defendants
Enbysk and Gall notified them of information, to which they were not privy before,
which warranted removal.
Defendants also spend an extensive portion of their opposition discussing how
Plaintiff’s claim for negligent infliction for emotional distress against Enbysk
(Defendants do not mention Gall here) is without merit, Opp. at 11-12, and thereby
renders Enbysk fraudulently joined. Opp., at 13. However, Defendants have not
demonstrated that it was not until May 9, 2011 that they became aware of this supposed
defect. Moreover, the state court did not throw that claim out. In short, Defendants have
not demonstrated, therefore, the timeliness of the filing of their notice of removal.
The Court finds that Defendants Notice of Removal was untimely, and accordingly
REMANDS this action to state court.
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiff’s Motion to Remand.2
Good cause appearing therefor, the Court hereby REMANDS the action to the Los
Angeles County Superior Court for lack of subject matter jurisdiction. The clerk is
2
Dkt. 17.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-04271 AHM (PJWx)
Date
September 6, 2011
Title
DORIT EDEN v. STANDARD FIRE INSURANCE COMPANY, et al.
directed to close this file.
Defendants’ request for sanctions, Opp. at 14-15, is hereby DENIED. Plaintiff’s
request for leave to file an Attorneys’ Fees Motion, Mot. at 14, and request for sanctions
against Defendants, Reply at 20, are also DENIED.
No hearing is necessary. Fed. R. Civ. P. 78; Local Rule 7-15.
:
Initials of Preparer
SMO
JS-6
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