1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BARBARA SANCHEZ, ) Case No. CV 20-1867 FMO (ASx) ) 12 Plaintiff, ) ) 13 v. ) ORDER REMANDING ACTION ) 14 DOES 1 THROUGH 100, Inclusive, ) PRAXAIR, INC., et al., ) 15 ) Defendants. ) 16 ) ) 17 18 On June 12, 2019, plaintiff filed a Complaint in the Santa Barbara County Superior Court 19 against Doe defendants, (see Dkt. 1-1, Complaint), which according to removing defendant include 20 Praxair, Inc. (“Praxair”) and Nusil Technology LLC (“NuSil”). (See Dkt. 1, Notice of Removal 21 (“NOR”) at ¶¶ 1, 13-14).1 On February 26, 2020, Praxair removed that action on diversity 22 jurisdiction grounds pursuant to 28 U.S.C. § 1332. (See id. at ¶ 10). 23 “Federal courts are courts of limited jurisdiction. They possess only that power authorized 24 by Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 25 S.Ct. 1673, 1675 (1994). The courts are presumed to lack jurisdiction unless the contrary appears 26 27 1 Although not referred to in the NOR, two Amendments to Complaint identify defendants in 28 1 affirmatively from the record. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n. 3, 126 2 S.Ct. 1854, 1861 (2006). Federal courts have a duty to examine jurisdiction sua sponte before 3 proceeding to the merits of a case, see Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 119 4 S.Ct. 1563, 1569 (1999), “even in the absence of a challenge from any party.” Arbaugh v. Y&H 5 Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 1244 (2006). 6 “The right of removal is entirely a creature of statute and a suit commenced in a state court 7 must remain there until cause is shown for its transfer under some act of Congress.” Syngenta 8 Crop Protection, Inc. v. Henson, 537 U.S. 28, 32, 123 S.Ct. 366, 369 (2002) (internal quotation 9 marks omitted). Where Congress has acted to create a right of removal, those statutes, unless 10 otherwise stated, are strictly construed against removal jurisdiction.2 See id. Unless otherwise 11 expressly provided by Congress, “any civil action brought in a State court of which the district 12 courts of the United States have original jurisdiction, may be removed by the defendant or the 13 defendants, to the district court[.]” 28 U.S.C. § 1441(a); see Dennis v. Hart, 724 F.3d 1249, 1252 14 (9th Cir. 2013) (same). A removing defendant bears the burden of establishing that removal is 15 proper. See Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (per 16 curiam) (noting the “longstanding, near-canonical rule that the burden on removal rests with the 17 removing defendant”); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (“The strong 18 presumption against removal jurisdiction means that the defendant always has the burden of 19 establishing that removal is proper.”) (internal quotation marks omitted). Moreover, if there is any 20 doubt regarding the existence of subject matter jurisdiction, the court must resolve those doubts 21 in favor of remanding the action to state court. See Gaus, 980 F.2d at 566 (“Federal jurisdiction 22 must be rejected if there is any doubt as to the right of removal in the first instance.”). 23 “Under the plain terms of § 1441(a), in order properly to remove [an] action pursuant to that 24 provision, [the removing defendant] must demonstrate that original subject-matter jurisdiction lies 25 in the federal courts.” Syngenta Crop Protection, 537 U.S. at 33, 123 S.Ct. at 370. Failure to do 26 27 2 For example, an “antiremoval presumption” does not exist in cases removed pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). See Dart Cherokee Basin Operating 28 1 so requires that the case be remanded, as “[s]ubject matter jurisdiction may not be waived, and 2 . . . the district court must remand if it lacks jurisdiction.” Kelton Arms Condo. Owners Ass’n, Inc. 3 v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003). Indeed, “[i]f at any time before final 4 judgment it appears that the district court lacks subject matter jurisdiction, the case shall be 5 remanded.” 28 U.S.C. § 1447(c); see Emrich v. Touche Ross & Co., 846 F.2d 1190, 1194 n. 2 6 (9th Cir. 1988) (“It is elementary that the subject matter jurisdiction of the district court is not a 7 waivable matter and may be raised at anytime by one of the parties, by motion or in the 8 responsive pleadings, or sua sponte by the trial or reviewing court.”); Washington v. United Parcel 9 Serv., Inc., 2009 WL 1519894, *1 (C.D. Cal. 2009) (a district court may remand an action where 10 the court finds that it lacks subject matter jurisdiction either by motion or sua sponte). 11 The court’s review of the NOR and the attached state court Complaint makes clear that this 12 court does not have subject matter jurisdiction over the instant matter. See 28 U.S.C. § 1441(a); 13 Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429 (1987) (“Only state-court 14 actions that originally could have been filed in federal court may be removed to federal court by 15 the defendant.”) (footnote omitted). In other words, plaintiff could not have originally brought this 16 action in federal court, as plaintiff does not competently allege facts supplying diversity 17 jurisdiction.3 See 28 U.S.C. § 1332(a).4 18 When federal subject matter jurisdiction is predicated on diversity of citizenship pursuant 19 to 28 U.S.C. 1332(a), complete diversity must exist between the opposing parties. See Caterpillar 20 Inc. v. Lewis, 519 U.S. 61, 68, 117 S.Ct. 467, 472 (1996) (stating that the diversity jurisdiction 21 statute “applies only to cases in which the citizenship of each plaintiff is diverse from the 22 citizenship of each defendant”). Praxair contends that complete diversity exists because plaintiff 23 is a citizen of California, (see Dkt. 1, NOR at ¶¶ 11-12), Praxair is a citizen of Delaware and 24 Connecticut, (id. at ¶ 13), and NuSil is a citizen of Delaware and Pennsylvania. (Id. at ¶ 14). 25 26 3 Praxair seeks only to invoke the court’s diversity jurisdiction. (See Dkt. 1, NOR at ¶ 10). 27 4 In relevant part, 28 U.S.C.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BARBARA SANCHEZ, ) Case No. CV 20-1867 FMO (ASx) ) 12 Plaintiff, ) ) 13 v. ) ORDER REMANDING ACTION ) 14 DOES 1 THROUGH 100, Inclusive, ) PRAXAIR, INC., et al., ) 15 ) Defendants. ) 16 ) ) 17 18 On June 12, 2019, plaintiff filed a Complaint in the Santa Barbara County Superior Court 19 against Doe defendants, (see Dkt. 1-1, Complaint), which according to removing defendant include 20 Praxair, Inc. (“Praxair”) and Nusil Technology LLC (“NuSil”). (See Dkt. 1, Notice of Removal 21 (“NOR”) at ¶¶ 1, 13-14).1 On February 26, 2020, Praxair removed that action on diversity 22 jurisdiction grounds pursuant to 28 U.S.C. § 1332. (See id. at ¶ 10). 23 “Federal courts are courts of limited jurisdiction. They possess only that power authorized 24 by Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 25 S.Ct. 1673, 1675 (1994). The courts are presumed to lack jurisdiction unless the contrary appears 26 27 1 Although not referred to in the NOR, two Amendments to Complaint identify defendants in 28 1 affirmatively from the record. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n. 3, 126 2 S.Ct. 1854, 1861 (2006). Federal courts have a duty to examine jurisdiction sua sponte before 3 proceeding to the merits of a case, see Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 119 4 S.Ct. 1563, 1569 (1999), “even in the absence of a challenge from any party.” Arbaugh v. Y&H 5 Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 1244 (2006). 6 “The right of removal is entirely a creature of statute and a suit commenced in a state court 7 must remain there until cause is shown for its transfer under some act of Congress.” Syngenta 8 Crop Protection, Inc. v. Henson, 537 U.S. 28, 32, 123 S.Ct. 366, 369 (2002) (internal quotation 9 marks omitted). Where Congress has acted to create a right of removal, those statutes, unless 10 otherwise stated, are strictly construed against removal jurisdiction.2 See id. Unless otherwise 11 expressly provided by Congress, “any civil action brought in a State court of which the district 12 courts of the United States have original jurisdiction, may be removed by the defendant or the 13 defendants, to the district court[.]” 28 U.S.C. § 1441(a); see Dennis v. Hart, 724 F.3d 1249, 1252 14 (9th Cir. 2013) (same). A removing defendant bears the burden of establishing that removal is 15 proper. See Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (per 16 curiam) (noting the “longstanding, near-canonical rule that the burden on removal rests with the 17 removing defendant”); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (“The strong 18 presumption against removal jurisdiction means that the defendant always has the burden of 19 establishing that removal is proper.”) (internal quotation marks omitted). Moreover, if there is any 20 doubt regarding the existence of subject matter jurisdiction, the court must resolve those doubts 21 in favor of remanding the action to state court. See Gaus, 980 F.2d at 566 (“Federal jurisdiction 22 must be rejected if there is any doubt as to the right of removal in the first instance.”). 23 “Under the plain terms of § 1441(a), in order properly to remove [an] action pursuant to that 24 provision, [the removing defendant] must demonstrate that original subject-matter jurisdiction lies 25 in the federal courts.” Syngenta Crop Protection, 537 U.S. at 33, 123 S.Ct. at 370. Failure to do 26 27 2 For example, an “antiremoval presumption” does not exist in cases removed pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). See Dart Cherokee Basin Operating 28 1 so requires that the case be remanded, as “[s]ubject matter jurisdiction may not be waived, and 2 . . . the district court must remand if it lacks jurisdiction.” Kelton Arms Condo. Owners Ass’n, Inc. 3 v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003). Indeed, “[i]f at any time before final 4 judgment it appears that the district court lacks subject matter jurisdiction, the case shall be 5 remanded.” 28 U.S.C. § 1447(c); see Emrich v. Touche Ross & Co., 846 F.2d 1190, 1194 n. 2 6 (9th Cir. 1988) (“It is elementary that the subject matter jurisdiction of the district court is not a 7 waivable matter and may be raised at anytime by one of the parties, by motion or in the 8 responsive pleadings, or sua sponte by the trial or reviewing court.”); Washington v. United Parcel 9 Serv., Inc., 2009 WL 1519894, *1 (C.D. Cal. 2009) (a district court may remand an action where 10 the court finds that it lacks subject matter jurisdiction either by motion or sua sponte). 11 The court’s review of the NOR and the attached state court Complaint makes clear that this 12 court does not have subject matter jurisdiction over the instant matter. See 28 U.S.C. § 1441(a); 13 Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429 (1987) (“Only state-court 14 actions that originally could have been filed in federal court may be removed to federal court by 15 the defendant.”) (footnote omitted). In other words, plaintiff could not have originally brought this 16 action in federal court, as plaintiff does not competently allege facts supplying diversity 17 jurisdiction.3 See 28 U.S.C. § 1332(a).4 18 When federal subject matter jurisdiction is predicated on diversity of citizenship pursuant 19 to 28 U.S.C. 1332(a), complete diversity must exist between the opposing parties. See Caterpillar 20 Inc. v. Lewis, 519 U.S. 61, 68, 117 S.Ct. 467, 472 (1996) (stating that the diversity jurisdiction 21 statute “applies only to cases in which the citizenship of each plaintiff is diverse from the 22 citizenship of each defendant”). Praxair contends that complete diversity exists because plaintiff 23 is a citizen of California, (see Dkt. 1, NOR at ¶¶ 11-12), Praxair is a citizen of Delaware and 24 Connecticut, (id. at ¶ 13), and NuSil is a citizen of Delaware and Pennsylvania. (Id. at ¶ 14). 25 26 3 Praxair seeks only to invoke the court’s diversity jurisdiction. (See Dkt. 1, NOR at ¶ 10). 27 4 In relevant part, 28 U.S.C. § 1332(a) provides that “district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of 28 1 However, Praxair improperly relies on the standard applicable to corporations despite the fact that 2 NuSil is a limited liability company. (See id.) (stating that NuSil is “a limited liability company 3 organized under the laws of the State of Delaware with its principal place of business is 4 Pennsylvania”).5 5 Limited liability companies (“LLCs”) are treated like partnerships rather than corporations 6 for the purpose of determining citizenship, and are deemed “a citizen of every state of which its 7 owners/members are citizens.” Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 8 (9th Cir. 2006); see Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 569, 124 S.Ct. 1920, 9 1923 (2004) (“[A] partnership . . . is a citizen of each State or foreign country of which any of its 10 partners is a citizen.”). “There is no such thing as ‘a [state name] limited partnership’ for purposes 11 of . . . diversity jurisdiction. There are only partners, each of which has one or more citizenships.” 12 Hart v. Terminex Int’l, 336 F.3d 541, 544 (7th Cir. 2003) (internal quotation marks omitted). 13 Moreover, “[a]n LLC’s principal place of business [or] state of organization is irrelevant” for 14 purposes of diversity jurisdiction. See Buschman v. Anesthesia Business Consultants LLC, 42 15 F.Supp.3d 1244, 1248 (N.D. Cal. 2014); Tele Munchen Fernseh GMBH & Co 16 Produktionsgesellschaft v. Alliance Atlantis Int’l Distribution, LLC, 2013 WL 6055328, *4 (C.D. Cal. 17 2013) (“As a limited liability company, [defendant]’s principal place of business is irrelevant for 18 purposes of diversity jurisdiction.”). If a member of an LLC is a corporation, then the state of that 19 member’s incorporation and its principal place of business must be shown. 20 Praxair has failed to set forth NuSil’s proper citizenship and that of its members. (See, 21 generally, Dkt. 1, NOR). In short, it has failed to show that complete diversity of the parties exists. 22 Given that any doubt regarding the existence of subject matter jurisdiction must be resolved in 23 favor of remanding the action to state court, see Gaus, 980 F.2d at 566, the court is not 24 persuaded, under the circumstances here, that defendant has met its burden. Therefore, there 25 26 5 Although Praxair provides NuSil’s citizenship based on “information and belief,” (see Dkt. 1, 27 NOR at ¶ 14), given that Praxair included NuSil’s consent to removal as an exhibit, (see Dkt. 1-3, Defendant NuSil Technology LLC’s Consent and Joinder to Removal), such a qualified statement 28 1 is no basis for diversity jurisdiction. 2 This order is not intended for publication. Nor is it intended to be included in or 3 submitted to any online service such as Westlaw or Lexis. 4 Based on the foregoing, IT IS ORDERED that: 5 1. The above-captioned action shall be remanded to the Superior Court of the State of 6 California for the County of Santa Barbara, 1100 Anacapa Street, Santa Barbara, CA 93101 for 7 lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1447(c). 8 2. The Clerk shall send a certified copy of this Order to the state court. 9 3. Any pending motion is denied as moot. 10 Dated this 19th day of March, 2020. /s/ Fernando M. Olguin 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28