Ilunga Adell v. Rosalyn Willis Ilunga
Filing
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ORDER GRANTING MOTION FOR REMAND 16 ; The Motion to Set Aside Default 12 and the Request to file Sur-Reply 25 are VACATED as moot by Judge Dean D. Pregerson. cc: order, docket, remand letter to Los Angeles Superior Court, No. BD 290216. MD JS-6. Case Terminated. (Attachments: # 1 remand letter) . (lc). Modified on 8/6/2013 (lc).
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cc: order, docket, remand letter to
Los Angeles Superior Court, No. BD 290216
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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ILUNGA ADELL,
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Plaintiff,
v.
ROSALYN WILLIS ILUNGA;
PRODUCER-WRITERS GUILD OF
AMERICA PENSION PLAN,
Defendants.
___________________________
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Case No. CV 13-04103 DDP (AJWx)
ORDER GRANTING MOTION FOR REMAND
[Dkt. No. 16]
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Presently before the court is Claimant and Cross-Complainant
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Producer-Writers Guild of America Pension Plan (“Pension Plan”)’s
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Motion for Remand.
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court GRANTS the Motion and adopts the following order.
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Having considered the parties’ submissions, the
The case was removed from the proceeding to dissolve the
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marriage between Ilunga Adell and Rosalyn Willis Ilunga (“First
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Wife”), Los Angeles Superior Court, Case No. BD290216.
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later married to Terry Williams-Ilunga, who removed this action to
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federal court (“First Wife Dissolution”).
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the Los Angeles Superior Court, Case No. BD346040, was filed to
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dissolve the marriage between Adell and Williams-Ilunga.
Adell was
Another proceeding in
The
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Pension Plan was not originally a party to either of these
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dissolution proceedings.
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federal Employee Retirement Income Security Act (ERISA), 29 U.S.C.
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§ 1002(2), providing retirement benefits.
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in the Pension Plan, who has had contributions made on his behalf,
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an account of covered employment.
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submitted an application to the Pension Plan for early retirement
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benefits.
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November 1, 2012.
It is an employee benefit plan under the
Adell is a participant
On September 28, 2012, Adell
His application was approved for benefits commencing
(RJN Exh. H-6.)
Prior to Adell’s application
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for retirement benefits, both First Wife and Williams-Ilunga made
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claims against the pension benefits from the Pension Plan.
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The Pension Plan was joined in the First Wife Dissolution.
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(RJN Exh. D.)
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Plan filed a responsive pleading as allowed by Family Code §
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2063(b).
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Family Court, under Code Civ. P. § 386.
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as a Cross-Complaint, naming Adell and First Wife as Cross-
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Defendants, and adding Williams-Ilunga as a Third-Party Cross
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Defendnat.
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After being served with the joinder, the Pension
The Pension Plan chose to file an Interpleader in the
The Interpleader was filed
The Pension Plan has provided a Proof of Service of the
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Summons and Interpleader to Williams-Ilunga on May 3, 2013.
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Exh. F.)
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“Request for Notice of Removal” in a separate action, Williams-
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Ilunga v. Gonzalez, 12-CV-08592, which was rejected by the court.
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On June 4, 2013, Williams-Ilunga filed a Notice of Removal in this
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action.
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Adell was taken on June 26, 2013. (Dkt. Nos. 9 & 14).
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(RJN
On June 4, 2013, Williams-Ilunga attempted to file a
Her default was taken on June 19, 2013, and the default of
The Pension Plan moves to remand for three reasons: (1) the
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removal was untimely, (2) a cross-defendant may not remove a
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cross-complaint, and (3) not all defendants have joined in or
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consented to the removal.
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argument that the removal was timely, but nonetheless remands the
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action.
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The court assumes for the sake of
Under 28 USC § 1441(a), "the defendant or the defendants" of a
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civil action may remove a state court action to federal court if
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"the district courts of the United States have original
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jurisdiction" over that action.
The Pension Plan does not here
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dispute that the court has original jurisdiction over the action,
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but argues that Williams-Ilunga is not a defendant in the civil
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action.
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313 U.S. 100 (1941), the Supreme Court held that only an original
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defendant could remove a state action to federal court.
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Ninth Circuit, third party defendants cannot remove actions to
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federal court.
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Cir. 2011)(“Since Shamrock Oil, the law has been settled that a
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counterclaim defendant who is also a plaintiff to the original
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state action may not remove the case to federal court. . . .
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Likewise, the Shamrock Oil rule has been extended to preclude
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removal by third-party defendants to an action.”)(internal
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citations omitted).
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The court agrees.
In Shamrock Oil & Gas Corp. v. Sheets,
In the
Westwood Apex v. Contreras, 644 F.3d 799, 805 (9th
Williams-Ilunga was brought in as a third party defendant by
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the counterclaim of the Interpleader.
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is not a defendant who is able to remove the action.
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Therefore, Williams-Ilunga
Additionally, the removal statute requires that “all
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defendants who have been properly joined and served must join in or
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consent to the removal of the action.”
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28 U.S.C. § 1446(b).
Here,
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the First Wife has not joined in the removal and is opposed to it.
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(Sackman Decl. ¶2, Exh.O (“My client [First Wife] did not consent
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to the removal of the Interpleader to federal court.
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opposed to the Removal of the Interpleader action to federal court
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and request[] that it remain in state court under [the First Wife
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Dissolution matter]”).)
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reason as well.
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We are
The removal is therefore improper for that
Whether Williams-Ilunga was improperly joined is immaterial to
the propriety of removal to federal court.
She may challenge her
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joinder in State Court.
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action are irrelevant to the propriety of removal.
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no position on the merits, but finds that the action was improperly
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removed to this court.
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Likewise, the merits of the underlying
For these reasons, the Motion is GRANTED.
The court takes
The case is
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remanded to state court.
The Motion to Set Aside Default (Dkt. No.
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12) and the Request to file Sur-Reply (Dkt. No. 25) are VACATED as
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moot.
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IT IS SO ORDERED.
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Dated: August 6, 2013
DEAN D. PREGERSON
United States District Judge
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