Pfeifer v. Dexcom, Inc.

• Court: District Court, S.D. California
• Decided: May 3, 2023
• Docket: 3:22-cv-01878
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || Pfeifer, ‘| Case No.: 22cv1878-JO-MDD 12 Plaintitt, | ORDER GRANTING PLAINTIEF’S 13 || v. MOTION TO REMAND; 14 || Dexcom. Inc. GRANTING PLAINTIFF’S oa REQUEST FOR ATTORNEYS’ 15 Defendant.; FEES; AND DENYING 16 DEFENDANT’S MOTION TO DISMISS 17 18 19 On December 7, 2022, Plaintiff Helena Pfeifer filed a product liability action agains 20 ||Defendant Dexcom, Inc. (“Defendant” or “Dexcom”) in state court. Defendant remove 21 || Plaintiff's action to this Court on November 28, 2022, nine days before the complaint wa 22 ||actually filed in state court. On December 19, 2022, Defendant filed a motion to dismiss 23 ||Dkt. 6. On December 29, 2022, Plaintiff filed a motion to remand the action to state cour 24 lack of subject matter jurisdiction and requested attorneys’ fees incurred in seekin; 25 ||remand. Dkt. 7. For the reasons stated below, the Court grants Plaintiff's motion t 26 ||remand, grants Plaintiffs request for attorneys’ fees, and denies Defendant’s motion t 27 |/dismiss as moot. 28

1 I. BACKGROUND 2 Plaintiff initiated a product liability suit in state court but Defendant removed the 3 || action to federal court before the action was officially filed. On December 7, 2022, Plaintiff 4 || filed her complaint in state court. Dkt. 7, Ex. A. Although the official filing date of 5 Plaintiffs complaint was December 7, 2022, Plaintiff electronically submitted the 6 |/complaint to the superior court clerk for filing a few days prior. Defendant received notice 7 ||of this electronic submission through the filing service provider and immediately filed a 8 Notice of Removal on November 28, 2022—nine days before the clerk filed □□□□□□□□□□□ 9 |}complaint in superior court.' Dkt. 1. On December 19, 2022, Defendant also filed a 10 motion to dismiss Plaintiff's complaint before this Court. Dkt. 6. 1] Both Plaintiff and the Court questioned the legal validity of Defendant’s removal of 12 ||an action with only state law claims by a Defendant that is a citizen of California. On 13 December 29, 2022, Plaintiff filed a motion to remand the action to state court for lack of 14 subject matter jurisdiction on the grounds that (1) the notice of removal was defective 15 because the complaint had not even been filed at the time of removal and (2) because 16 ||Defendant was a California citizen, it could not remove on the grounds of diversity 17 ||jurisdiction. Dkt. 7.2 Plaintiff also requested attorneys’ fees and costs incurred in the 18 ||removal. Dkt. 20. On January 12, 2023, the Court ordered Defendant to show cause why 19 case should not be remanded to state court because Defendant was a California citizen 20 ||seeking to remove an action solely on the basis of diversity. Dkt. 10. The Court ordered 21 ||the parties to either file a response to the order to show cause or notify the Court that the 22 || parties had stipulated to a remand to state court. Jd. On February 1, 2023, Defendant filed 23 response arguing that Plaintiff waived her right to object to an improper removal because 24 25 □ 26 27 28 : Plaintiff did not serve Defendant with the complaint until December 8, 2022. Dkt. 7, Ex. B. The case was transferred to the undersigned on January 13, 2023. Dkt. 9.

1 ||her remand motion was untimely. Dkt. 19.3 According to Defendant, this waiver entitled 2 |/it to remain in federal court. Id. 3 Il. CONCLUSION AND ORDER 4 For the reasons stated in the Court’s remand order in Casola v. Dexcom, Inc., 5 ||22cv1865-JO-MDD, attached hereto as Exhibit A, the Court GRANTS Plaintiffs motion 6 ||to remand and request for attorneys’ fees [Dkt. 7] and DENIES Defendant’s motion to 7 || dismiss [Dkt. 6] as moot. The Court DIRECTS Plaintiff to file, within fifteen (15) days of 8 ||the entry of this order, a motion for attorneys’ fees containing a substantiation of fees and 9 ||costs incurred in the removal. Defendant may file a response within seven (7) days of 10 || Plaintiffs filing of the motion. The Court instructs the Clerk to remand the action to San 11 || Diego County Superior Court. 12 13 IT ISSO ORDERED. 14 || Dated: May 3, 2023 15 16 Ho orgbfe Tinsook Ohta 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 || ———____—_- 28 > Defendant made these same arguments in its opposition to Plaintiff's motion to remand.

EXHIBIT A

3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || Casola, Case No.: 22cv1865-JO-MDD 12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 || V. MOTION TO REMAND; 14 || Dexcom. Inc GRANTING PLAINTIFF’S XEOM, IDEs» REQUEST FOR ATTORNEYS’ 15 Defendant.| FEES; AND DENYING 16 DEFENDANT’S MOTION TO DISMISS 17 18 19 On November 29, 2022, Plaintiff Lauren Casola filed a product liability action 20 |jagainst Defendant Dexcom, Inc. (“Defendant” or “Dexcom”). Defendant removed 21 || Plaintiffs action to this Court on November 28, 2022, one day before the complaint was 22 || actually filed in state court. On December 19, 2022, Defendant filed a motion to dismiss. 23 || Dkt. 6. On December 29, 2022, Plaintiff filed a motion to remand the action to state court 24 || for lack of subject matter jurisdiction and requested attorneys’ fees incurred in seeking 25 ||remand. Dkt. 7. For the reasons stated below, the Court grants Plaintiff’s motion to 26 |;remand, grants Plaintiff's request for attorneys’ fees, and denies Defendant’s motion to 27 || dismiss as moot. 28

1 I. BACKGROUND 2 Plaintiff initiated a product liability suit in state court but Defendant removed the 3 ||action to federal court before the action was officially filed. On November 29, 2022, 4 || Plaintiff filed her complaint in state court. Dkt. 17, Ex. A. Although the official filing date 5 Plaintiff's complaint was November 29, 2022, Plaintiff electronically submitted the 6 ||complaint to the superior court clerk for filing six days prior. Defendant received notice 7 this electronic submission through the filing service provider and immediately filed a 8 ||Notice of Removal on November 28, 2022—one day before the clerk filed □□□□□□□□□□□ 9 |} complaint in superior court.' Dk. 1. On December 19, 2022, Defendant also filed a motion 10 || to dismiss Plaintiff's complaint before this Court. Dkt. 6. 11 Both Plaintiff and the Court questioned the legal validity of Defendant’s removal of 12 action with only state law claims by a defendant that is a citizen of California. On 13 ||December 29, 2022, Plaintiff filed a motion to remand the action to state court for lack of 14 ||/subject matter jurisdiction on the grounds that (1) the notice of removal was defective 15 because the complaint had not even been filed at the time of removal and (2) because 16 ||Defendant was a California citizen, it could not remove on the grounds of diversity 17 ||jurisdiction. Dkt. 7.2 Plaintiff also requested attorneys’ fees and costs incurred in the 18 |lremoval. Dkt. 20 (Reply). On January 12, 2023, the Court ordered Defendant to show 19 ||cause why the case should not be remanded to state court because Defendant was a 20 || California citizen seeking to remove an action solely on the basis of diversity. Dkt. 10. 21 || The Court ordered the parties to either file a response to the order to show cause or notify 22 ||the Court that the parties had stipulated to a remand to state court. Jd. On February 1, 23 ||2023, Defendant filed a response arguing that Plaintiff waived her right to object to an 24 25 26 27 28 : Plaintiff did not serve Defendant with the complaint until November 30, 2022. Dkt. 17, Ex. B. The case was transferred to the undersigned on January 5, 2023. Dkt. 9.

1 |}improper removal because her remand motion was untimely. Dkt. 16. According to 2 || Defendant, this waiver entitled it to remain in federal court. /d.? 3 Il. LEGAL STANDARD 4 A defendant may remove a state court action to federal court only if the federal court 5 || would originally have had federal question or diversity jurisdiction over the matter. See 6 U.S.C. § 1441; Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 7 || Diversity jurisdiction requires complete diversity of citizenship among the parties and an 8 |/amount in controversy exceeding $75,000. 28 U.S.C. § 1332. In order to remove an action 9 diversity grounds, however, defendants must meet an additional requirement: according 10 the “forum defendant rule,” a civil action may not be removed if any defendant is a 11 citizen of the state where the complaint was filed. 28 U.S.C. § 1441(b)(2). The forum 12 ||defendant rule thus “confines removal on the basis of diversity jurisdiction to instances 13 || where no defendant is a citizen of the forum state.” Lively v. Wild Oats Mkts., Inc., 456 14 || F.3d 933, 939 (9th Cir. 2006); see also Spencer v. U.S. Dist. Court for N. Dist. of Cal., 393 15 || F.3d 867, 870 (9th Cir. 2004). Because the principal purpose of diversity jurisdiction is to 16 || “protect out-of-state defendants from possible prejudices in state court,” this bar to removal 17 || by local defendants reflects the reality that there is no need for such protection where the 18 || defendant is a resident of the state in which the case is brought. Lively, 456 F.3d at 940. 19 Parties can waive the “forum defendant” limitation on removal by failing to object 20 atimely manner. A plaintiff must file a motion to remand the action on this basis within 21 days of the notice of removal. See 28 U.S.C. § 1447(c). Otherwise, because the forum 22 defendant rule does not deprive the federal court of jurisdiction, a plaintiff can be deemed 23 ||to have waived its objection based on a violation of this rule. Lively, 456 F.3d at 942. 24 In considering a remand, the court construes any doubts against the removing party. 25 There is a “strong presumption against removal jurisdiction,” which means that “the 26 27 ||_-——_—_____——_ 28 ||; Defendant asserted these same arguments in its opposition to Plaintiffs motion to remand. Dkt. 19.

1 defendant always has the burden of establishing that removal is proper, and that the court 2 ||resolves all ambiguity in favor of remand to state court.” Hunter v. Philip Morris USA, 3 ||582 F.3d 1039, 1042 (9th Cir. 2009) (internal quotations omitted); Luther v. Countrywide 4 || Home Loans Servicing LP, 533 F.3d 1031, 1034 (9th Cir. 2008) (“[R]emoval statutes are 5 strictly construed against removal.”). Thus, a court must reject federal jurisdiction “if there 6 any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 7 ||564, 566 (9th Cir. 1992). 8 I. DISCUSSION 9 The Court finds that this action must be remanded to state court because as a citizen 10 |lof California, Defendant cannot remove this action on the grounds of diversity jurisdiction. 11 || At the time of removal, Defendant was a citizen of California and, therefore, a forum 12 ||defendant. Dkt. 1 (stating Defendant is a citizen of California and maintains its principal 13 ||place of business in San Diego, California); see also 28 U.S.C. § 1332(c)(1) (for the 14 || purposes of diversity jurisdiction, corporation shall be deemed to be a citizen of every 15 ||State and foreign state by which it has been incorporated and of the State or foreign state 16 || where it has its principal place of business...”). As a forum defendant, Defendant cannot 17 remove this action solely on the basis of diversity jurisdiction. 28 U.S.C. § 1441(b)(2). 18 Defendant concedes its status as a forum defendant but argues that Plaintiff waived 19 ||her right to remand by failing to file her motion in a timely manner. Defendant argues that 20 || because it filed its Notice of Removal on November 28, 2022, and Plaintiff did not move 21 ||to remand until December 29, 2022, she exceeded her 30-day window to challenge the 22 |\“forum defendant” defect. In response, Plaintiff argues that Defendant’s Notice of 23 |}Removal was defective because Defendant filed it before Plaintiff's complaint was 24 || officially filed; a defective removal notice cannot start the clock on the 30-day window for 25 remand motion. Because resolution of this dispute hinges on this issue, the Court will 26 ||examine the validity of Defendant’s Notice of Removal. 27 A proper removal requires a complaint to have first been filed. The removal statute 28 || provides that the defendant must file a notice of removal upon receipt “of a copy of the

1 initial pleading setting forth the claim for relief upon which such action or proceeding is 2 based[.]” 28 U.S.C. § 1446(b)(1). A complaint must be filed in court to become an initial 3 |i pleading; only after a complaint has been filed is there anything to be removed. Cal. Civ. 4 ||Pro. Code § 350 (‘An action is commenced...when the complaint is filed); Kuxhausen v. 5 || BMW Fin. Servs. NA LLC, 707 F.3d 1136, 1142 (9th Cir. 2013) (“Had [defendant] removed 6 the basis of a not-yet-filed complaint, which may or may not ever have materialized, ‘it 7 ||may well have subjected itself to fees and costs, and potentially Rule 11 sanctions, for 8 || filing a baseless notice of removal.””); Kurihara v. CH2M Hill, Inc., 6 F. Supp. 2d 533, 9 ||536 (E.D. Va. 1998) (finding removal period was not triggered where defendant received 10 || copy of pleading that “bore no indication that it actually had been filed”). 11 Here, Defendant filed a notice of removal seeking to remove a not-yet-filed 12 |}complaint. Although Plaintiff electronically submitted her complaint a few days before, 13 ||the San Diego Superior Court did not file Plaintiff's complaint until November 29, 2022, 14 evidenced by the time stamp of the Clerk of the Superior Court. Dkt. 17, Ex. A. At the 15 time of this filing, Plaintiffs civil action commenced, Cal. Civ. Pro. Code § 350, and her 16 || filed complaint became the “initial pleading” in the lawsuit. The removal statute requires 17 || Defendant to file a notice of removal upon receipt “of a copy of the initial pleading” in a 18 ||case but Defendant did not do so; instead, it filed a notice of removal based on an unfiled 19 || complaint— before it had an official “initial pleading” in hand. For this reason, the Court 20 ||finds that Defendant’s Notice of Removal was defective and therefore, its filing on 21 ||November 28, 2022, does not render Plaintiff's motion to remand untimely. 22 Defendant takes the position that Plaintiff's complaint was filed when it was 23 submitted to the San Diego Superior Court despite the later official filing date. Defendant 24 ||argues that a complaint is filed when it is in “actual or constructive custody” of the clerk; 25 ||thus, the complaint was already “filed” as of the date it was electronically submitted, six 26 days before Defendant’s removal of the action. See Def.’s Opp’n 8 citing to U.S. v. Dae 27 || Rim Fishery Co., Ltd., 794 F.2d 1392 (9th Cir. 1986), Loya v. Desert Sands Unified School 28 || Dist., 721 F.2d 279 (9th Cir. 1983), and Carlson v. State of California Dep’t of Fish &

1 Game, 68 Cal. App. 4th 1268 (1998). The Court has reviewed the cases that Defendant 2 ||relies upon and finds them to be inapposite to the issue before it. Loya involved a court 3 |lclerk who refused to file a complaint because it was typed on the wrong size paper in 4 || violation of a local rule. Loya, 721 F.2d at 280. By the time plaintiff refiled the complaint, 5 |ithe statute of limitations had expired. Jd. On appeal, the Ninth Circuit held that “for 6 || purposes of the statute of limitations, the district court should regard as ‘filed’ a complaint 7 || which arrives in the custody of the clerk within the statutory period but fails to conform 8 || with formal requirements in local rules.” Jd. at 281. Similarly, both Dae Rim Fishery and 9 || Carlson involved situations where a court clerk rejected complaints for technical failures 10 || causing the plaintiffs to miss their statute of limitations window. Dae Rim Fishery Co., 11 ||794 F.2d 1392; Carlson, 68 Cal. App. 4th 1268. In both cases, the appellate courts held 12 that for purposes of the statute of limitations, filing should be deemed to have occurred on 13 date of delivery. Dae Rim Fishery Co., 794 F.2d at 1395; Carlson, 68 Cal. App. 4th at 14 1273. The holdings of these cases are explicitly limited to contexts in which the expiration 15 || of the statute of limitations is at stake—to prevent the manifest injustice of a clerk’s refusal 16 ||to file a complaint depriving a plaintiff of the right to bring suit. See id. The cases do not 17 |lapply to the situation here involving a defendant removing a complaint that had not been 18 || properly filed. 19 Accordingly, the Court finds Defendant’s removal notice to be defective because it 20 || was filed in advance of a filed complaint. The Court remands this action because it was 21 || filed by a forum defendant and Plaintiff did not waive this defect by failing to file a timely 22 motion to remand. 23 IV. REQUEST FOR ATTORNEYS’ FEES 24 Finding that Defendant’s removal of this action was improper, the Court next 25 ||considers Plaintiff's request for the attorneys’ fees and costs she incurred as a result of 26 || Defendant’s removal. Under 28 U.S.C. § 1447(c), a court may order payment of “just costs 27 ||and any actual expenses, including attorney fees, incurred as a result of the removal.” 28 28 ||U.S.C. § 1447(c). The standard for awarding fees turns on the reasonableness of the

1 defendant’s decision to remove a case. A court may exercise its sound discretion to award 2 |;attorneys’ fees under § 1447(c) “where the removing party lacked an objectively 3 ||reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 4 || 141 (2005). 5 Here, the Court finds that Defendant had no reasonable grounds to remove this case. 6 || It is undisputed that Dexcom is a forum defendant: the company is a citizen of California 7 ||and maintains its principal place of business in San Diego, California. Given that the 8 ||removal statute expressly provides that forum defendants may not remove their actions on 9 ||the basis of diversity, 28 U.S.C. § 1441(b)(2), Defendant had no objectively reasonable 10 || basis to file a notice of removal. In opposing remand, Defendant acknowledges the forum 11 defendant rule but argues only that Plaintiff waived the defect with her untimely remand 12 ||motion. Removing a case in violation of the requirements and hoping that Plaintiff waives 13 ||the procedural defect is far from having a reasonable basis for the removal in the first 14 |linstance. See, e.g., Everest Systems Co. v. Platinum Roofing, Inc., 2019 WL 3387951, at 15 |] *2(N.D. Cal. July 26, 2019) (granting fees where forum defendant removed action in hopes 16 that plaintiff would waive its right to remand). The Court finds that fees and costs are 17 || appropriate because Defendant lacked a reasonable basis to remove this action.* 18 V. CONCLUSION 19 For the reasons discussed above, the Court GRANTS Plaintiff's motion to remand 20 || and request for attorneys’ fees [Dkt. 7] and DENIES Defendant’s motion to dismiss [Dkt. 21 ||6] as moot. The Court DIRECTS Plaintiff to file, within fifteen (15) days of the entry of 22 || this order, a motion for attorneys’ fees containing a substantiation of fees and costs incurred 23 ||in the removal. Defendant may file a response within seven (7) days of Plaintiff's filing of 24 25 26 || 27 While not a part of the above reasonableness analysis, the Court also questions the good faith of Dexcom 28 and its counsel, a large and reputable law firm, in pursuing a groundless removal in violation of well- established principles.

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1 ||the motion. The Court instructs the Clerk to remand the action to San Diego County 2 Superior Court. 3 IT IS SO ORDERED. 4 ||Dated: March 31, 2023 Sp 6 Ho Orgefe Tinsook Ohta 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28