Anderson et al v. Serenity Gathering, LLC et al, No. 3:2016cv02802 - Document 8 (S.D. Cal. 2017)

Court Description: ORDER Denying Plaintiffs' 3 Motion to Remand. The Court denies Plaintiffs' motion to remand and denies as moot Plaintiffs' request for attorney's fees. Serenity may amend its Notice of Removal to perfect its defective allegations by February 3, 2017. Signed by Judge Gonzalo P. Curiel on 1/18/17. (dlg)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 PATRICIA ANDERSON and MARK JACKSON, ORDER DENYING PLAINTIFFS’ MOTION TO REMAND Plaintiffs, 13 14 Case No.: 3:16-cv-02802-GPC-KSC v. 16 17 [ECF No. 3.] SERENITY GATHERING, LLC; SOLTRIBE CUISINE, LLC; and DOES 1 to 10, Inclusive, Defendants. 15 18 19 Before the Court is Plaintiffs Patricia Anderson and Mark Jackson’s (collectively, 20 “Plaintiffs’”) motion to remand the instant case to state court. (Dkt. No. 3.) Defendant 21 Serenity Gathering, LLC (“Defendant” or “Serenity”) opposed the motion. (Dkt. No. 5.) 22 The Court deems Plaintiff’s motion suitable for disposition without oral argument 23 pursuant to Civil Local Rule 7.1(d)(1). Having reviewed the parties’ briefing and the 24 applicable law, and for the reasons set forth below, the Court DENIES Plaintiffs’ motion 25 to remand. 26 BACKGROUND 27 On September 15, 2016, Plaintiffs Patricia Anderson and Mark Jackson filed a 28 Complaint against Serenity and Soltribe Cuisine, LLC (“Defendant” or “Soltribe”) in the 1 3:16-cv-02802-GPC-KSC 1 Superior Court of the State of California, County of San Diego. (Dkt. No. 1 at 1–2.1) 2 Plaintiffs’ Complaint alleged state law causes of action. (Dkt. No. 1-2.) On November 3 15, 2016, Serenity removed the case to federal court on the basis of diversity jurisdiction. 4 (Dkt. No. 1 at 1–4.) In its Notice of Removal, Serenity stated that removal was proper, as 5 complete diversity of citizenship existed between Plaintiffs and Defendants, and the 6 amount in controversy was satisfied. (Id.) Rather than listing the citizenship of each 7 member of the limited liability companies, Serenity stated: (1) “Defendant SERENITY 8 GATHERING, LLC is a Limited Liability Company that was organized and formed in 9 Nevada and maintains its principal place of business in Las Vegas, Nevada,” and (2) 10 “Defendant SOL TRIBE CUISINE, LLC is a Limited Liability Company that was 11 organized in Colorado and maintains its principal place of business in Colorado.” (Id. at 12 2.) 13 Plaintiffs filed the instant motion to remand on December 5, 2016. (Dkt. No. 3.) 14 LEGAL STANDARD 15 Pursuant to 28 U.S.C. § 1441(a), a defendant may remove to federal court a claim 16 filed in state court that could have initially been brought in federal court. 28 U.S.C. § 17 1441(a); Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). A district court must 18 remand a case to state court “if at any time before the final judgment it appears that the 19 district court lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c). As federal courts 20 have limited jurisdiction, they are presumed to lack jurisdiction unless the contrary is 21 established. Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968–69 (9th Cir. 22 1981). A motion to remand is the procedure to challenge removal of an action to federal 23 court. 28 U.S.C. § 1447(c). There is a presumption against removal, and the defendant 24 has the burden to demonstrate that removal was proper. Moore-Thomas v. Alaska 25 Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009). 26 27 28 1 All citations to the record are based upon the pagination generated by the CM/ECF system. 2 3:16-cv-02802-GPC-KSC 1 2 3 DISCUSSION I. Motion to Remand Plaintiffs allege several grounds for remanding the instant action back to state 4 court. First, Plaintiffs assert that alleging citizenship “on information and belief” is 5 insufficient to establish diversity jurisdiction. (Dkt. No. 3-1 at 3 (citing Bradford v. 6 Mitchell Bros. Truck Lines, 217 F. Supp. 525, 526–27 (N.D. Cal. 1963).) Specifically, 7 Plaintiffs reference ¶ 6 of the Declaration of Andrew B. Kleiner, filed concurrently with 8 Serenity’s Notice of Removal: 9 10 11 12 13 14 Based upon information and belief, SOL TRIBE CUISINE, LLC is now, and was at the time of the filing of this action, a citizen of a State other than California within the meaning of 28 U.S.C. § 1332(c)(l), because it is a business entity organized under the laws of the State of Colorado, with its principal place of business also in Colorado. On November 11, 2016, I performed internet research on the Colorado Secretary of State’s website where it listed SOL TRIBE CUISINE, LLC as an active limited liability company legally operating as a business in Colorado. 15 (Dkt. No. 1-2 at 1–2, ¶ 6.) Second, Plaintiffs contend that Serenity relied upon an 16 incorrect legal test to determine the citizenship of Defendants, both of which are limited 17 liability companies. (Dkt. No. 3-1 at 3–4.) Third, Plaintiffs dispute Serenity’s argument 18 that removal was proper because it was unaware of whether Soltribe Cuisine had been 19 served. (Id. at 4.) Finally, Plaintiffs contend that Serenity may not belatedly seek to 20 correct the deficiencies in its Notice of Removal. (Id. at 5.) 21 Serenity opposes Plaintiffs’ motion to remand on several grounds. First, Serenity 22 asserts that there is and has always been complete diversity of citizenship between 23 Plaintiffs and Defendants. (Dkt. No. 5 at 2–4.) Second, Serenity acknowledges that its 24 allegations of Defendants’ citizenship fall short of establishing diversity in its original 25 Notice of Removal, but asserts that Serenity is not precluded from perfecting its 26 allegations now. (Id. at 5–9.) Specifically, Serenity states that it did not receive a 27 pleading that triggered the thirty-day removal period, and that even assuming the thirty- 28 day removal period were triggered, amendment of the defects in its removal notice is 3 3:16-cv-02802-GPC-KSC 1 permissible under Ninth Circuit law. (Id.) Serenity additionally notes that Plaintiffs’ 2 failure to deny the facts alleged in Serenity’s Notice of Removal constitutes admission of 3 those facts. (Id. at 9.) 4 Serenity has established in its opposition brief that complete diversity of 5 citizenship exists between Plaintiffs and Defendants. For purposes of diversity 6 jurisdiction, “an LLC is a citizen of every state of which its owners/members are 7 citizens.” Johnson v. Columbia Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 8 2006). At all relevant times, Serenity has consisted of two members: Mimi McGee and 9 Brandon Beebe. (Dkt. No. 5 at 2; Dkt. No. 5-1 at 1, ¶ 2.) Ms. McGee is domiciled in 10 Utah, (Dkt. No. 5 at 3; Dkt. No. 5-1 at 2, ¶ 5), and Mr. Beebe is domiciled in Nevada 11 (Dkt. No. 5 at 3; Dkt. No. 5-1 at 2, ¶ 6). As for Soltribe, Serenity has confirmed that at 12 all relevant times, Soltribe has consisted of a single member—Keshava Rossi—who is 13 domiciled in Colorado. (Dkt. No. 5 at 4; Dkt. No. 5-1 at 2–3, ¶ 8.) Complete diversity of 14 citizenship thus existed at the time of removal between Plaintiffs, who are citizens of 15 California, and Defendants, who are citizens of Utah, Nevada, and Colorado. 16 17 18 19 20 21 In addition, Serenity correctly asserts that it timely removed the case. 28 U.S.C. § 1446(b) provides two thirty-day windows during which a case may be removed—during the first thirty days after the defendant receives the initial pleading or during the first thirty days after the defendant receives a paper “from which it may first be ascertained that the case is one which is or has become removable” if “the case stated by the initial pleading is not removable.” 22 Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 692 (9th Cir. 2005) (quoting 28 U.S.C. 23 § 1446(b)). In the case of an “indeterminate pleading,” from which “it is unclear from 24 the complaint whether the case is removable, i.e., the citizenship of the parties is unstated 25 or ambiguous,” the “thirty day time period for removal starts to run from defendant’s 26 receipt of the initial pleading only when that pleading affirmatively reveals on its face the 27 facts necessary for federal court jurisdiction.” Harris, 425 F.3d at 690–93 (internal 28 citation, quotation marks, and alteration omitted). Moreover, a defendant may “remove 4 3:16-cv-02802-GPC-KSC 1 outside the two thirty-day periods on the basis of its own information, provided that it has 2 not run afoul of either of the thirty-day deadlines.” Roth v. CHA Hollywood Med. Ctr., 3 L.P., 720 F.3d 1121, 1125 (9th Cir. 2013). 4 Here, neither of the thirty-day periods for removal has expired or begun to run 5 under 28 U.S.C. § 1446(b). Plaintiffs’ Complaint is an “indeterminate pleading,” as 6 nothing within the four corners of the Complaint indicates Defendants’ citizenship. As 7 such, the first thirty-day window did not begin to run upon Serenity’s receipt of the initial 8 pleading. For this reason, Barnhill v. Ins. Co. of N. Am., 130 F.R.D. 46, 52 (D.S.C. 1990) 9 (denying defendant leave to amend its removal petition after the statutory period for 10 removal under 28 U.S.C. § 1446(b) had expired), which Plaintiffs cite to argue that 11 Serenity may not amend its removal allegations, is distinguishable. Furthermore, 12 Serenity has not received “an amended pleading, motion, order or other paper from which 13 it may first be ascertained that the case is one which is or has become removable.” 28 14 U.S.C. § 1446(b)(3). Rather, Serenity removed the instant case on the basis of its own 15 information and its investigation of Soltribe’s citizenship. (Dkt. No. 5 at 6.) 16 Accordingly, the second thirty-day removal window has also not begun to run. 17 Where “the requisite jurisdictional allegations are not omitted entirely, but rather 18 are merely defective in form,” the Ninth Circuit has allowed for the amendment of 19 removal petitions. Kacludis v. GTE Sprint Commc’ns Corp., 806 F. Supp. 866, 869 20 (N.D. Cal. 1992); accord Geerlof v. C & S Wholesale Grocers, Inc., No. 2:13-CV-02175- 21 MCE-KJ, 2014 WL 1415974, at *2 (E.D. Cal. Apr. 14, 2014) (“The majority of courts … 22 allow defendants to amend defective allegations of jurisdiction in their notice as long as 23 the initial notice of removal was timely filed and sets forth the same legal grounds for 24 removal.” (internal citation and quotation marks omitted)). The Ninth Circuit has 25 permitted defendants to amend their removal allegations to cure defects similar to the 26 ones in the instant case. See, e.g., Luehrs v. Utah Home Fire Ins. Co., 450 F.2d 452, 454 27 (9th Cir. 1971) (granting leave to amend removal petition, where defendant corporation 28 removed on the basis of diversity jurisdiction, but failed to state plaintiff’s state of 5 3:16-cv-02802-GPC-KSC 1 citizenship and failed to list its own principal place of business); Barrow Dev. Co. v. 2 Fulton Ins. Co., 418 F.2d 316, 318 (9th Cir. 1969) (allowing amendment where defendant 3 corporation removed on the basis of diversity jurisdiction and merely stated that it was a 4 citizen of New York, rather than disclosing its state of incorporation and principal place 5 of business); London v. Standard Oil Co. of California, 417 F.2d 820, 822 (9th Cir. 1969) 6 (permitting amendment of removal petition to cure inadequate allegation of the 7 citizenship of the defendant corporation). Here, as discussed supra, Serenity timely 8 removed the instant action and alleged, albeit imperfectly, that complete diversity of 9 citizenship existed between the parties. (See Dkt. No. 1 at 2–3; Dkt. No. 1-2 at 1–2, ¶¶ 10 5–6.) Now, it maintains the same legal grounds for removal—diversity jurisdiction—and 11 seeks to amend its imperfect allegations of citizenship in a manner consistent with Ninth 12 Circuit precedent. See Geerlof, 2014 WL 1415974, at *5. As such, the Court DENIES 13 Plaintiffs’ motion to remand and GRANTS Serenity leave to amend its Notice of 14 Removal. See 28 U.S.C. § 1653 (“Defective allegations of jurisdiction may be amended, 15 upon terms, in the trial . . . courts.”). 16 II. 17 Attorney’s Fees Plaintiffs move the Court to order Serenity to pay attorney’s fees in the amount of 18 $4,550.00, arguing that Defendant lacked any objectively reasonable basis for removal. 19 (Dkt. No. 3-1 at 5.) Serenity opposes Plaintiffs’ demand. (Dkt. No. 5 at 9–11.) In light 20 of the Court’s denial of Plaintiffs’ motion, the Court DENIES AS MOOT Plaintiffs’ 21 request for attorney’s fees. 22 CONCLUSION 23 For the foregoing reasons, the Court DENIES Plaintiffs’ motion to remand and 24 DENIES AS MOOT Plaintiffs’ request for attorney’s fees. (Dkt. No. 3.) Serenity may 25 amend its Notice of Removal to perfect its defective allegations by February 3, 2017. 26 27 IT IS SO ORDERED. //// 28 6 3:16-cv-02802-GPC-KSC 1 Dated: January 18, 2017 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 3:16-cv-02802-GPC-KSC