Petropoulos et al v. FCA US LLC et al, No. 3:2017cv00398 - Document 13 (S.D. Cal. 2017)
Court Description: ORDER Denying 6 Plaintiffs' Motion to Remand. Signed by Judge Thomas J. Whelan on 7/7/2017. (jao)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PETER PETROPOLOUS, et al., Case No.: 17-CV-0398 W (KSC) Plaintiffs, 12 13 v. 14 ORDER DENYING PLAINTIFFS’ MOTION TO REMAND [DOC. 6] FCA US, LLC, Defendant. 15 16 17 Defendant removed this action from the Superior Court of California on February 18 27, 2017. (Notice of Removal [Doc. 1].) Plaintiffs now move to remand. (Pls.’ Mot. 19 [Doc. 6].) Defendant opposes. (Def.’s Opp’n [Doc. 8].) The Court decides the matters 20 on the papers submitted and without oral argument pursuant to Civil Local Rule 21 7.1(d)(1). For the reasons that follow, Plaintiffs’ motion will be denied. 22 // 23 // 24 // 25 // 26 // 27 // 28 // 1 17-CV-0398 W (KSC) 1 2 I. BACKGROUND In March of 2011, Plaintiffs purchased a new 2011 Dodge Durango from 3 Defendant FCA US LLC. (See Compl. [Doc. 1-2, Exh. A] ¶¶ 4, 8.) The vehicle 4 experienced recurrent problems. (See id. [Doc. 1-2, Exh. A] ¶ 9.) The Complaint alleges 5 that between August of 2012 and July of 2015, Plaintiffs delivered it to an FCA US repair 6 facility on nine separate occasions due to issues with a part known as the “totally 7 integrated power module,” or TIPM. (See id. [Doc. 1-2, Exh. A] ¶¶ 10–13, 94–102.) 8 According to the Complaint, Defendant concealed the defect with the part, together with 9 safety risks resulting from the problem. (See id. [Doc. 1-2, Exh. A] ¶ 103.) Plaintiffs 10 joined as putative class members in Velasco, et al. v. Chrysler Group LLC, No. 13-CV- 11 8080 DDP (VBK) (C.D. Cal.), a class action dealing with substantially similar facts to 12 those alleged here. (Id. [Doc. 1-2, Exh. A] ¶¶ 117–133.) Plaintiffs opted out of the class 13 in order to pursue their individual claims. (Id. [Doc. 1-2, Exh. A] ¶ 131.) 14 Plaintiffs brought this action in the Superior Court of California against FCA US 15 LLC and Peck Jeep Eagle, Inc., on March 30, 2016, alleging: (1) breach of an express 16 warranty in violation of the Song-Beverly Act; (2) breach of an implied warranty in 17 violation of the Song-Beverly Act; (3) fraudulent inducement through concealment; and 18 (4) negligent repair. (Compl. [Doc. 1-2, Exh. A].) Parties engaged in discovery over the 19 next eleven months, and the matter was set for trial on March 17, 2017. (Hamblin Decl. 20 [Doc. 6-1] ¶¶ 7–8.) 21 Defendant Peck Jeep Eagle, a California corporation with its principal place of 22 business in California, filed for Bankruptcy in the United States District Court for the 23 Southern District of California on January 17, 2017. (Def.’s Opp’n [Doc. 8] 2:3–8; 24 Compl. [Doc. 1-2, Exh. A] ¶ 3.) It filed a Notice of Automatic Stay in the state-court 25 action. (Def.’s Opp’n [Doc. 8] 2:3–8; Register of Actions [Doc. 1-7, Exh. F] 2.) 26 Thereafter, on February 15, 2017, Plaintiffs dismissed Peck Jeep Eagle from the state- 27 court action with prejudice. (See Notice of Removal [Doc. 1] ¶¶ 5–7; Register of Actions 28 2 17-CV-0398 W (KSC) 1 [Doc. 1-7, Exh. F] 2.) On February 27, 2017, within two weeks of the dismissal of Peck 2 Jeep Eagle, Defendant FCA US LLC removed the action. (Notice of Removal [Doc. 1].) 3 Plaintiffs now move to remand, arguing: (1) that this case does not meet the 4 complete diversity and amount in controversy requirements of 28 U.S.C. § 1332; and (2) 5 that comity principles counsel against the exercise of original federal subject matter 6 jurisdiction in this case. (See Pls.’ Mot. [Doc. 6].) 7 8 9 10 II. LEGAL STANDARD A. Removal Jurisdiction—Diversity of Citizenship “The district courts shall have original jurisdiction of all civil actions where 11 the matter in controversy exceeds the sum or value of $75,000, exclusive of 12 interest and costs, and is between . . . citizens of a State and citizens or subjects of 13 a foreign state . . . .” 28 U.S.C. § 1332(a)(2). “Federal courts are courts of limited 14 jurisdiction. They possess only that power authorized by Constitution and statute, 15 which is not to be expanded by judicial decree.” In re Hunter, 66 F.3d 1002, 1005 16 (9th Cir. 1995) (quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 17 (1994)). 18 The party seeking to invoke removal jurisdiction bears the burden of supporting its 19 jurisdictional allegations with competent proof. See Gaus v. Miles. Inc., 980 F.2d 564, 20 566 (9th Cir. 1992) (per curiam); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 21 (9th Cir. 1988). “The propriety of removal . . . depends on whether the case originally 22 could have been filed in federal court.” Chicago v. International College of Surgeons, 23 522 U.S. 156, 163 (1997); 28 U.S.C. § 1441(a). Where the amount in controversy is 24 unclear from the face of the complaint, courts apply a preponderance of the evidence 25 standard. Guglielmino v. McKee Foods Corp., 506 F.3d 696, 701 (9th Cir. 2007). 26 27 There is a “strong presumption” against removal jurisdiction, and the defendant always bears the burden of establishing the propriety of removal. See Gaus, 980 F.2d at 28 3 17-CV-0398 W (KSC) 1 566 (internal quotation omitted); Nishimoto v. Federman-Bachrach & Associates, 903 2 F.2d 709, 712 n.3 (9th Cir. 1990) (internal citation omitted). 3 4 5 6 7 III. DISCUSSION A. The Court Has Original Subject Matter Jurisdiction. 1. Diversity of Citizenship The existence of diversity jurisdiction requires that the citizenship of each plaintiff 8 be diverse from that of each defendant. See 28 U.S.C. § 1332; Caterpillar Inc. v. Lewis, 9 519 U.S. 61, 68 (1996). Put another way, no plaintiff may be a citizen of the same state 10 as any defendant. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978) 11 (internal citation omitted). 12 A person’s citizenship “is . . . determined by her state of domicile, . . . her 13 permanent home, where she resides with the intention to remain or to which she intends 14 to return.” See Kanter v. Warner-Lambert, 265 F.3d 853, 857 (9th Cir. 2001) (internal 15 citation omitted). 16 17 a) Plaintiffs’ Citizenship As to Plaintiffs’ citizenship, the Complaint alleges that Petropolous and Nelson are 18 “individuals residing in the City of San Diego, County of San Diego, and State of 19 California.” (Compl. [Doc. 1-2, Exh. A] ¶ 1.) The Notice of Removal alleges that 20 Plaintiffs are both “citizens and residents of the State of California.” (Notice of Removal 21 [Doc. 1] ¶ 9.) Plaintiffs do not argue otherwise in their motion. (See Pls.’ Mot. [Doc. 6] 22 10:15–12:23.) However, in their reply brief, they contend for the first time that 23 “Defendant has failed to [e]stablish Plaintiffs’ [c]itizenship.” (Pls.’ Reply [Doc. 12] 3:2– 24 19.) The Court “need not consider arguments raised for the first time in a reply brief.” 25 Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (citing Koerner v. Grigas, 328 F.3d 26 1039, 1048 (9th Cir. 2003)). Plaintiffs produce no evidence to indicate that they are not 27 California citizens. In the absence of such evidence, it would be unfair to Defendant to 28 consider an empty factual challenge made for the first time in a reply brief. The Notice 4 17-CV-0398 W (KSC) 1 of Removal adequately alleges that Plaintiffs are California citizens. There is no reason 2 to suspect that this allegation is incorrect. 3 b) 4 Defendant’s Citizenship As to Defendant’s citizenship, the Notice of Removal alleges that FCA US LLC is 5 a limited liability company, the sole member of which is Fiat Chrysler Automobiles, 6 N.V., “a [publicly] traded company incorporated under the laws of the Netherlands[.]” 7 (Notice of Removal [Doc. 1] ¶ 10.) 8 9 10 “[A]n LLC is a citizen of every state of which its owners/members are citizens.” Johnson v. Columbia Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). Because foreign entities are not domestic corporations, they are not subject to 28 11 U.S.C. § 1332(c), but rather to 28 U.S.C. § 1332(a)(2), which covers “citizens or subjects 12 of a foreign state.” See Cohn v. Rosenfeld, 733 F.2d 625, 630 (9th Cir. 1984). “Section 13 1332(a)(2) applies to foreign legal entities of all kinds, so long as the entity is considered 14 a juridical person under the law that created it.” Cohn, 733 F.2d at 629. A juridicial 15 person is “[a]n entity, such as a corporation, created by law and given certain legal rights 16 and duties of a human being; a being, real or imaginary, who for the purpose of legal 17 reasoning is treated more or less as a human being.” PERSON, Black’s Law Dictionary 18 (10th ed. 2014). In making this determination, the Court may consider whether the entity 19 in question has certain traditional corporate characteristics, such as: (1) the protections of 20 limited liability; (2) the ability to sue and be sued in its own name; and (3) the capacity to 21 retain any recovery from a lawsuit as an asset of the entity. See Cohn, 733 F.2d at 629. 22 Plaintiffs offer several objections to Defendant’s evidence as to its citizenship. 23 First, Plaintiffs offer foundation and hearsay objections to a declaration Defendant 24 25 uses to establish its corporate structure. (Pls.’ Mot. [Doc. 6] 11:22–12:23.) The declaration is that of Kris Krueger, who holds the position of Senior Staff 26 Counsel at FCA US LLC. (See Krueger Decl. [Doc. 1-8] ¶ 1.) Plaintiffs contend that 27 Krueger lacks foundation to testify as to the corporate structure of his employer’s parent 28 company because he works for FCA US LLC, not Fiat Chrysler Automobiles, N.V., its 5 17-CV-0398 W (KSC) 1 sole member. (Pls.’ Mot. [Doc. 6] 11:26–12:1.) Plaintiffs also offer a hearsay objection 2 to the testimony. (Id. [Doc. 6] 12:3–4.) A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703. 3 4 5 6 F. R. Evid. 602. Hearsay is not admissible unless a federal statute, the Federal Rules of 7 Evidence, or other rules prescribed by the Supreme Court provide otherwise. F. R. Evid. 8 802. “ ‘Hearsay’ means a statement that: (1) the declarant does not make while testifying 9 at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the 10 matter asserted in the statement.” Fed. R. Evid. 801(c). Plaintiffs’ objections are overruled. As to foundation, Mr. Krueger’s position as a 11 12 senior in-house attorney lends every reason to believe that he knows under which laws 13 his employer’s sole member was incorporated. (See Krueger Decl. [Doc. 1-8].) See F. 14 R. Evid. 602. And as to hearsay, Plaintiffs simply do not identify any hearsay statements 15 within Krueger’s declaration. See F. R. Evid. 801. 16 Second, Plaintiffs object to evidence Defendant uses to establish that a Dutch N.V. 17 is a juridicial person pursuant to the laws of the Netherlands. (See Pls.’ Mot. [Doc. 6] 18 11:22–12:23; Pls.’ Reply [Doc. 12] 5:17–23.) 19 “In determining foreign law, the court may consider any relevant material or 20 source, including testimony, whether or not submitted by a party or admissible under the 21 Federal Rules of Evidence.”1 Fed. R. Civ. P. 44.1. 22 23 In connection with the Notice of Removal, Mr. Krueger, Senior Staff Counsel at FCA US LLC, declares that “Fiat Chrysler Automobiles N.V. is an independent legal 24 25 26 27 28 Plaintiffs cite this rule, but they conspicuously omit the phrase “whether or not submitted by a party or admissible under the Federal Rules of Evidence.” (See Pls.’ Reply [Doc. 12] 5:15–17.) Fed. R. Civ. P. 44.1. In the sentences directly following the citation, they present a foundation objection implicitly grounded in Federal Rule of Evidence 602. (See id. [Doc. 12] 5:17–23.) 1 6 17-CV-0398 W (KSC) 1 entity, having separate patrimony and legal standing from any of its investors or legal 2 representatives under the laws of the Netherlands.” (Krueger Decl. [Doc. 1-8] ¶ 8.) 3 Krueger further declares that “Fiat Chrysler Automobiles N.V. may sue in its own name 4 in the courts of the Netherlands,” (id. [Doc. 1-8] ¶ 9), and that “[a]ny recovery obtained 5 in a lawsuit brought by . . . Fiat Chrysler Automobiles N.V. belongs to the business 6 entity, not its investors, under the laws of the Netherlands.” (Id. [Doc. 1-8] ¶ 10.) 7 Furthermore, in opposition to the motion to remand, Defendant attaches a 8 translated copy of a relevant portion of the Dutch Civil Code, which it downloaded from 9 the website www.dutchcivillaw.com. (Dutch Civil Code [Doc. 8-3]; Shepardson Decl. 10 [Doc. 8-1] ¶ 4.) The code states, “[a]n Open Corporation (‘naamloze vennootschap’) is 11 a legal person with an authorized capital divided in transferable shares. A shareholder is 12 not personally liable for what is performed in the name of the Corporation and he is not 13 obliged to contribute to the losses of the Corporation for more than what he has paid up 14 or still has to pay up on his shares.” (Id. [Doc. 8-3] 2:64-1 (emphasis added).) The 15 Dutch Civil Code repeatedly uses the phrase “juridicial act” to refer to potential acts of 16 the N.V. legal entity. (See id. [Doc. 8-3] 2:69-2, 2:93-1, 2:93-4, 2:94-1.) 17 Plaintiffs object to both piece of evidence—Krueger’s declaration, and the 18 translated copy of the Dutch Civil Code. (See Pls.’ Mot. [Doc. 6] 11:22–12:23; Pls.’ 19 Reply [Doc. 12] 5:17–23.) Notably, they do not contend that either Mr. Krueger’s 20 declaration or the translation is incorrect in any way. Nor do they offer an alternative 21 interpretation or translation of Dutch law. (Pls.’ Reply [Doc. 12] 5:5–26.) 22 23 24 Plaintiffs’ objections are overruled. Both these items of evidence as to foreign law are relevant, and the Court considers them. See Fed. R. Civ. P. 44.1. Plaintiffs offer one final objection, that Defendant did not give sufficient notice of 25 the intent to raise an issue about a foreign country’s law. (See Pls.’ Reply [Doc. 12] 26 5:13–15.) This is without merit. 27 28 “A party who intends to raise an issue about a foreign country's law must give notice by a pleading or other writing.” Fed. R. Civ. P. 44.1. 7 17-CV-0398 W (KSC) 1 Plaintiffs themselves raised the issue of foreign law when they filed their motion to 2 remand. (See Pls.’ Mot. [Doc. 6] 10:15–12:23.) To the extent they argue that Defendant 3 raised the issue simply by removing the case, Plaintiffs offer no reasoning as to why the 4 Notice of Removal would not fall within Rule 44.1’s definition of “pleading or other 5 writing.” 6 Mr. Krueger’s declaration and the translation of the Dutch Civil Code adequately 7 demonstrate that a Dutch N.V. is a juridicial person pursuant to the law that created it, 8 and that Defendant FCA US LLC’s sole member is Fiat Chrysler Automobiles, N.V., a 9 Dutch N.V. (See Krueger Decl. [Doc. 1-8]; Dutch Civil Code [Doc. 8-3]; Shepardson 10 Decl. [Doc. 8-1] ¶ 4.) See Cohn, 733 F.2d at 628–30. This conclusion is in accord with 11 overwhelming authority involving this same issue as to this same defendant. See 12 Kotulski v. FCA US LLC, No. 17-CV-0527 AJB (BGS), 2017 WL 2705429, at *4 (S.D. 13 Cal. June 23, 2017) (Battaglia, J.) (holding that FCA US LLC and its sole member, Fiat 14 Chrysler Automobiles, N.V., is “more likely than not a citizen of the Netherlands”); 15 Johnson v. FCA US LLC, No. 17-CV-0536 AJB (BGS), 2017 WL 2705430, at *4 (S.D. 16 Cal. June 23, 2017) (Battaglia, J.) (same); Demaria v. FCA US LLC, No. 17-CV-0539 17 AJB (BGS), 2017 WL 2705431, at *4 (S.D. Cal. June 23, 2017) (Battaglia, J.) (same); 18 Garcia v. FCA US, LLC, 2016 WL 4445337, at *3 (E.D. Cal. Aug. 24, 2016) 19 (“[D]efendant has adequately asserted and established that Fiat Chrysler Automobiles, 20 N.V.[,] is a juridical person under the laws of Netherlands . . . .”); Patty v. FCA US, LLC, 21 2017 WL 950491, at *4 (E.D. Cal. Mar. 10, 2017) (“Fiat Chrysler Automobiles is a 22 juridical person . . . .”). 23 As a Dutch N.V., Fiat Chrysler Automobiles, N.V., is a juridicial person and a 24 citizen of the Netherlands for the purposes of a diversity jurisdiction analysis. See 28 25 U.S.C. § 1332(a); Cohn, 733 F.2d at 628–30. Because FCA US LLC’s sole member is 26 Fiat Chrysler Automobiles, N.V., it is also a citizen of the Netherlands. See Johnson, 437 27 F.3d at 899. 28 8 17-CV-0398 W (KSC) 1 As Plaintiffs are both citizens of California and Defendant is a citizen of the 2 Netherlands, complete diversity of citizenship exists between the parties. See 28 U.S.C. 3 § 1332(a). 4 5 2. 6 Amount in Controversy Plaintiffs challenge the amount in controversy calculation within the Notice of 7 Removal. (See Pls.’ Mot. [Doc. 6] 7:14–10:14.) They do not provide their own damages 8 figure—either in their motion or in the Complaint. (See id.; Compl. [Doc. 1-2, Exh. A].) 9 Moreover, according to Defendant, Plaintiffs provided a response to a special 10 interrogatory on the issue that was similarly lacking in a damage figure. (See Def.’s 11 Opp’n [Doc. 8] 12:16–25; Interrogatory Response [Doc. 8-10].) The Beverly-Song Act provides for restitution “in an amount equal to the actual 12 13 price paid or payable by the buyer, . . . including any collateral charges such as sales or 14 use tax, license fees, registration fees, and other official fees[.]” See Cal. Civ. Code § 15 1793.2(d)(2)(B). The Act allows a defendant to reduce that amount “by that amount 16 directly attributable to use by the buyer prior to the time the buyer first delivered the 17 vehicle to the manufacturer or distributor, or its authorized service and repair facility for 18 correction of the problem that gave rise to the nonconformity.” 2 See Cal. Civ. Code § 19 1793.2(d)(2)(C). The Act further provides a civil penalty “up to two times the amount of 20 actual damages.” Cal. Civ. Code § 1794(c). Moreover, it provides for an award of 21 reasonable attorneys’ fees to a prevailing buyer.3 See Cal. Civ. Code § 1794(d). 22 23 24 2 26 The statute specifies that the amount directly attributable to use by the buyer prior to the time the buyer first delivered the vehicle for repair is to be calculated pursuant to the following equation: (X/120,000)*the price paid or payable for the vehicle, where X is the number of miles driven prior to the time the vehicle was first delivered for repair. See Cal. Civ. Code § 1793.2(d)(2)(C). 27 3 25 28 The Court includes attorneys’ fees as part of the amount in controversy. See Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998). 9 17-CV-0398 W (KSC) 1 Among other remedies, the Complaint seeks restitution, civil penalties of two times 2 actual damages, and attorneys’ fees. (See Compl. [Doc. 1-2, Exh. A] 30.) Defendant 3 calculates the amount paid for the vehicle based on the cash price paid, $35,678, a figure 4 provided in the sale contract attached to the Complaint. (Def.’s Opp’n [Doc. 8] 12:3–15; 5 Sales Contract [Doc. 1-2, Exh. 1].) Defendant also includes a $4,000 estimate of 6 Plaintiffs’ interest paid to date.4 (See Def.’s Opp’n [Doc. 8] 12:3–15; Sales Contract 7 [Doc. 1-2, Exh. 1].) Defendant then calculates a $7,225.09 mileage offset per Cal. Civ. 8 Code § 1793.2(d)(2)(C), according to the mileage figure of 24,301 when the vehicle was 9 first brought in for repair.5 (See Def.’s Opp’n [Doc. 8] 13:1–14:9; Repair Order [Doc. 8- 10 11].) Plaintiffs do not appear to object to the offset calculation in the reply, nor do they 11 provide their own figures. (Pls.’ Reply [Doc. 12] 6:1–8:3.) They instead choose to focus 12 almost entirely on ostensible deficiencies in the damage calculations within the Notice of 13 Removal—an issue not relevant to the issue of whether jurisdiction exists. (See id.) 14 Even without factoring any interest into the calculations, Plaintiffs’ restitution 15 would be $35,678 subtracted by a mileage offset of $7,225.09, resulting in a figure of 16 $28,452.91. (See Def.’s Opp’n [Doc. 8] 14:1–9.) See Cal. Civ. Code § 1793.2. Adding a 17 civil penalty of twice that amount, or $56,905.82, yields a sum total $85,358.73. (See 18 Compl. [Doc. 1-2, Exh. A] 30.) See Cal. Civ. Code § 1794. This is before factoring in 19 attorneys’ fees, which are available to Plaintiffs per Cal. Civ. Code § 1794(d). 20 Defendant shows to a preponderance of the evidence that the amount in 21 controversy exceeds $75,000. See 28 U.S.C. § 1332; Guglielmino, 506 F.3d at 701. 22 23 24 25 26 27 4 Plaintiffs object to the inclusion of interest in this figure. (See Reply [Doc. 12] 7:12–15.) The Court need not rule on the objection, as even without including interest the amount in controversy is well in excess of $75,000. See 28 U.S.C. § 1332(a). 5 28 Notably, Defendant does not use the $4,000 interest estimate in its mileage offset calculation, which would increase the offset to $8035.13. (See Def.’s Opp’n [Doc. 8] 14:1–9.) 10 17-CV-0398 W (KSC) 1 Complete diversity of citizenship exists between the parties, and the amount in 2 controversy exceeds $75,000. Thus, the Court has original jurisdiction over the subject 3 matter of this case. See 28 U.S.C. § 1332. 4 5 B. 6 Plaintiffs argue that the Court should decline to exercise subject matter jurisdiction 7 over the case on the grounds that: (1) the Court should exercise an ostensible authority to 8 “veto” the exercise of original subject matter jurisdiction, given the state-law questions 9 involved; and (2) removal was untimely. (See Pls.’ Mot. [Doc. 6] 4:1–6:10.) Neither 10 11 Comity point has merit. As to the first, federal courts generally do not have discretion to decline to exercise 12 original subject matter jurisdiction. They have a “virtually unflagging obligation . . . to 13 exercise the jurisdiction given them.” Colorado River Water Conservation Dist. v. 14 United States, 424 U.S. 800, 817 (1976); see also Snodgrass v. Provident Life & Acc. Ins. 15 Co., 147 F.3d 1163, 1167 (9th Cir. 1998); BNSF Ry. Co. v. O’Dea, 572 F.3d 785, 793 16 n.2 (9th Cir. 2009) (“[T]he diversity statute, unlike the supplemental jurisdiction statute, 17 does not afford district courts the discretion to decline jurisdiction over state law 18 claims.”). 19 The sole case Plaintiffs cite on this point, Grable & Sons Metal Products, Inc. v. 20 Darue Engineering & Mfg., 545 U.S. 308, 313 (2005), is not to the contrary. (Pls.’ Mot. 21 [Doc. 6] 3:21–6:10.) Grable stands for the proposition that in the limited circumstance in 22 which a federal question is embedded within a state-law claim, the exercise of federal 23 jurisdiction pursuant to 28 U.S.C. § 1331 is subject to a “possible veto . . . [f]or the 24 [embedded] federal issue will ultimately qualify for a federal forum only if federal 25 jurisdiction is consistent with congressional judgment about the sound division of labor 26 between state and federal courts governing the application of § 1331.” See 545 U.S. at 27 28 11 17-CV-0398 W (KSC) 1 313–14. Plaintiffs present no authority that has extended this rule to the exercise of 2 diversity jurisdiction pursuant to 28 U.S.C. § 1332.6 3 As to the second point, Defendant’s removal was timely per the applicable statute. 4 “Except as provided in subsection (c), if the case stated by the initial pleading is 5 not removable, a notice of removal may be filed within 30 days after receipt by the 6 defendant, through service or otherwise, of a copy of an amended pleading, motion, order 7 or other paper from which it may first be ascertained that the case is one which is or has 8 become removable.” 28 U.S.C. § 1446(b)(3). “A case may not be removed under 9 subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more than 1 year 10 after commencement of the action, unless the district court finds that the plaintiff has 11 acted in bad faith in order to prevent a defendant from removing the action.” 28 U.S.C. § 12 1446(c). 13 The state-court action was filed on March 30, 2016. (Compl. [Doc. 1-2, Exh. A].) 14 The case first became removable on February 15, 2017, when Plaintiffs dismissed Peck 15 Jeep Eagle, a California corporation with its principal place of business in California.7 16 (See id. [Doc. 1-2, Exh. A] ¶ 3; Notice of Removal [Doc. 1] ¶¶ 5–7.) As Plaintiffs are 17 also California citizens and Defendant FCA US LLC is a citizen of the Netherlands, the 18 dismissal of Peck Jeep Eagle created complete diversity of citizenship between the parties 19 for the first time. (See id. [Doc. 1] ¶¶ 9, 10–16.) Defendant removed within 30 days of 20 that dismissal, on February 27, 2017. (Id.) See 28 U.S.C. § 1446(b)(3). This was within 21 one year of the filing of the case, on March 30, 2016. See 28 U.S.C. § 1446(c). 22 23 Plaintiffs urge the Court to remand the case based upon the nearly eleven-month gap between filing and removal, and based on the proximity between removal and the 24 25 26 27 Plaintiffs’ citation to O’Connell & Stevenson, Cal. Practice Guide: Federal Civil Procedure Before Trial (Rutter Group 2017), Ch. 2D-10(a)(3)(d), seems to contain an incorrect page number. Page 2D-10 does not contain any information relevant to the issue at hand. 6 7 28 Accordingly, Peck Jeep Eagle was a California Citizen for the purpose of ascertaining the existence of diversity jurisdiction. See 28 U.S.C. § 1332(c)(1). 12 17-CV-0398 W (KSC) 1 original state-court trial date of March 17, 2017. (Hamblin Decl. [Doc. 6-1] ¶¶ 7–8.) To 2 do so would vitiate the statutory limitations periods on removal, with which Defendant 3 complied. There is no doubt that Defendant’s February 27 removal was within 30 days 4 from the date of receipt or service of Plaintiffs’ February 15 dismissal of Peck Jeep 5 Eagle, a “paper from which it may first be ascertained that the case is one which is or has 6 become removable.” See 28 U.S.C. § 1446(b)(3). There is no doubt that removal was 7 within one year of the case’s filing. See 28 U.S.C. § 1446(c). Plaintiffs’ comity arguments fail. 8 9 10 11 IV. CONCLUSION & ORDER In light of the foregoing, Plaintiffs’ motion to remand is DENIED. [Doc. 6.] 12 13 14 IT IS SO ORDERED. Dated: July 7, 2017 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 17-CV-0398 W (KSC)
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