Thomaz Henrique Serra v. Adam Daniel Huckins

• Court: District Court, C.D. California
• Decided: October 21, 2022
• Docket: 8:22-cv-01369
• Status: Unknown

Opinion

Case 8:22-cv-01369-CJC-JDE Document 30 Filed 10/21/22 Page 1 of 7 Page ID #:571 JS-6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 ) 12 ) ) Case No.: SACV 22-01369-CJC (KESx) 13 THOMAZ HENRIQUE SERRA, ) ) 14 ) Plaintiff, ) 15 ) ORDER GRANTING PLAINTIFF’S v. ) MOTION TO REMAND AND 16 ) DENYING PLAINTIFF’S REQUEST ) FOR MONETARY SANCTIONS 17 ) [Dkt. 18] ADAM DANIEL HUCKINS; ALLY ) 18 FINANCIAL, INC.; and DOES 2 to 20, ) ) 19 ) ) 20 ) Defendants. ) 21 ) ) 22 ) 23 24 I. INTRODUCTION & BACKGROUND 25 26 On December 1, 2021, Plaintiff Thomaz Henrique Serra filed this action in the 27 Superior Court of California, County of Orange, against Defendants Adam Daniel 28 Huckins and Ally, LLC, alleging personal injury claims related to a motor vehicle

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1 incident. (See Dkt. 1 [Notice of Removal, hereinafter “Notice”]; Dkt. 1-1 [Complaint].) 2 Huckins and Ally, LLC, acknowledge service on January 3, 2022. (See Dkt. 18-3 [Notice 3 of Acknowledgement of Receipt]; Dkt. 18-4 [Notice of Acknowledgement of Receipt].) 4 Serra amended the complaint to include Defendant Ally Financial, Inc., on May 17. (See 5 Dkt. 1-4 [Amendment to Complaint].) Then on June 24, Serra voluntarily dismissed his 6 claim against Ally, LLC, (see Dkt. 1-5 [Request for Dismissal]), and on July 22, Huckins 7 and Ally Financial removed the action to the U.S. District Court for the Central District 8 of California, invoking this Court’s diversity jurisdiction, (see Notice). Now before the 9 Court is Serra’s motion to remand and request for costs and expenses. (See Dkt. 18-1 10 [Plaintiff’s Memorandum of Points and Authorities in Support of Plaintiff’s Motion to 11 Remand and Request for Monetary Sanctions, hereinafter “Mot.”].) For the following 12 reasons, the Court GRANTS the motion to remand and DENIES the request for costs 13 and expenses.1 14 15 II. DISCUSSION 16 17 A. Removal 18 19 “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power 20 authorized by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) 21 (citation omitted). A federal district court has jurisdiction over a civil action removed 22 from state court only if the action could have been brought in the federal court originally. 23 See 28 U.S.C. § 1441(a). A court has diversity jurisdiction, moreover, when more than 24 $75,000 is in controversy and the citizenship of each plaintiff is different from that of 25 each defendant. See 28 U.S.C. § 1332(a). When a case is removed, the burden of 26

27 1 Having read and considered the papers presented by the parties, the Court finds this matter appropriate 28 for disposition without a hearing. See Fed. R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing set for October 24, 2022, is hereby vacated and removed from the calendar.

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1 establishing the propriety of removal falls on the defendant, and the removal statute is 2 strictly construed against removal jurisdiction. See Gaus v. Miles, Inc., 980 F.2d 564, 3 566 (9th Cir. 1992). “Federal jurisdiction must be rejected if there is any doubt as to the 4 right of removal in the first instance.” Id. 5 6 The deadline for a defendant to remove a case from state to federal court is 7 generally thirty days after receipt of the initial pleading. See 28 U.S.C. § 1446(b)(1). 8 “[I]f the case stated by the initial pleading is not removable,” however, a defendant may 9 remove the case thirty “days after receipt . . . of a copy of an amended pleading, motion, 10 order[,] or other paper from which it may first be ascertained that the case is one which is 11 or has become removable.” Id. § 1446(b)(3). A “bright-line approach” based on an 12 “objective analysis of the pleadings” governs removability. Harris v. Bankers Life & 13 Cas. Co., 425 F.3d 689, 697 (9th Cir. 2005). It “is determined through examination of 14 the four corners of the applicable pleadings, not through subjective knowledge or a duty 15 to make further inquiry.” Id. at 694. 16 17 Serra offers two arguments on why remand is required. First, he argues that 18 removal was improper because the parties are not completely diverse—namely, that 19 Huckins was not a domiciliary of Ohio as he claims but rather California, the same 20 domicile as Serra, at the time of removal. (See Mot. at 10–18.) Second, Serra argues that 21 removal was untimely. (See id. at 18–21.) The Court focuses on the timeliness issue 22 because it is dispositive of the motion. 23 24 Huckins and Ally Financial mention timeliness only cursorily in their notice of 25 removal. They state that removal occurred “within 30 days of receipt by Defendants 26 ALLY FINANCIAL, INC. and ADAM DANIEL HUCKINS of the dismissal of ALLY, 27 LLC on June 24, 2022, from which it was first ascertained that the case is one which has 28 become removable based on diversity jurisdiction.” (Notice ¶ 6.) They provide no other

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1 information on timeliness in their notice, nor do they address timeliness in their 2 opposition brief. The Court’s best guess on their position is that the removability of this 3 action first became “ascertainable,” thus triggering the second thirty-day removal clock 4 under § 1446(b)(3), only upon the dismissal of Ally, LLC, because its citizenship—and 5 thus complete diversity—were not “ascertainable.” 6 7 The removability of an action must be “ascertainable” from any “amended 8 pleading, motion, order or other paper” before the thirty-day clock begins. 28 U.S.C. 9 § 1446(b)(3). “Ascertainable” means “unequivocally clear and certain.” Dietrich v. 10 Boeing Co., 14 F.4th 1089, 1093–94 (9th Cir. 2021). “Other paper” is an expansive term 11 that generally encompasses any “written or printed document or instrument,” id. at 1095 12 (citation omitted), including responses to interrogatories, see Huffman v. Saul Holdings 13 Ltd. P’ship, 194 F.3d 1072 (10th Cir. 1999). 14 15 The citizenship of Ally, LLC was “ascertainable” well before the thirty days 16 preceding the July 22 removal. Indeed, it became clear as early as May 17—the date that 17 Ally Financial was added as a defendant. On April 6, Ally, LLC, submitted responses to 18 interrogatories that included a verification by Leland Coblentz, Ally Financial’s director 19 of corporate insurance claims, attesting that “Ally Financial, Inc.[,] [is] the parent 20 company of Ally, LLC.” (Dkt. 18-10 [Responses to Form Interrogatories] at 49.) “For 21 purposes of diversity jurisdiction, a limited liability company ‘is a citizen of every state 22 of which its owners/members are citizens.’” 3123 SMB LLC v. Horn, 880 F.3d 461, 465 23 (9th Cir. 2018) (citation omitted). Since Ally Financial is the parent company, Ally 24 Financial is necessarily the owner/member of Ally, LLC, which in turn is necessarily a 25 citizen of all states of which Ally Financial is a citizen. See Corporation, Black’s Law 26 Dictionary (11th ed. 2019) (defining “parent corporation” as “[a] corporation that has a 27 controlling interest in another corporation (called a subsidiary corporation), usu. through 28 ownership of more than one-half the voting stock . . . [a]lso termed parent company”).

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1 And defendants are charged with knowledge of their own citizenship.2 Accordingly, 2 when Ally Financial was added to the suit on May 17, the citizenship of Ally, LLC, was 3 in no way elusive but rather ascertainable. 4 5 Importantly, Huckins and Ally Financial never argue that the possibility of 6 additional nondiverse owners/members made complete diversity non-ascertainable—nor 7 can that bar remand now. The presumption against removal means that “the defendant[s] 8 always ha[ve] the burden of establishing that removal is proper.” Gaus, 980 F.3d at 566; 9 see also Richardson v. Gov’t Emps. Ins. Co., No. C13–5855, 2013 WL 6174486, at *1 10 (W.D. Wash. Nov. 21, 2013) (noting that the defendant has the burden to establish that 11 removal was timely); Murphy v. Finish Line, Inc., No. 20-cv-05663, 2020 WL 5884683, 12 at *1 (N.D. Cal. Oct. 5, 2020) (same). Huckins and Ally Financial did not meet that 13 burden. They failed to include any nonconclusory statements on their timeliness in their 14 notice of removal, let alone statements raising this possibility of more owners/members. 15 See Leite v. Crane Co., 749 F.3d 1117, 1122 (9th Cir. 2014) (“[A] defendant seeking to 16 remove an action may not offer mere legal conclusions; it must allege the underlying 17 facts supporting each of the requirements for removal jurisdiction.”); Lindley Contours, 18 LLC v. AABB Fitness Holdings, Inc., 414 F. App’x 62, 65 (noting that “conclusory 19 statements” in a notice of removal “are insufficient” due to a defendant’s “burden to 20 establish complete diversity” and that the defendants had “opportunities to correct defects 21 in [the] notice of removal” in ruling that the district court must remand the matter to state 22 court). Indeed, Huckins and Ally Financial do not respond at all in their opposition to 23

24 2 “Since Harris [v. Bankers Life & Casualty Co.], courts in this circuit have held the” general prohibition on considering defendants’ “‘subjective knowledge’ does not include basic facts defendants 25 are obviously aware of, such as their own citizenship.” Brecher v. Citigroup Glob. Mkts., Inc., No. 09cv1344, 2010 WL 11508779, at *4 (S.D. Cal. Mar. 24, 2010) (collecting cases); see also Leon v. 26 Gordon Trucking, Inc., 76 F. Supp. 3d 1055, 1064 (C.D. Cal. 2014) (“[A] corporate defendant, like any 27 other, is presumed to know its own citizenship.”); Praisler v. Ryder Integrated Logistics, Inc., 417 F. Supp. 2d 917, 920 (N.D. Ohio 2006) (“[A] defendant’s citizenship does not even bring the defendant’s 28 subjective knowledge into play, since an individual or a corporate defendant can be expected to know its own citizenship.”).

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1 Serra’s timeliness point, so they have also “waived the argument by failing adequately to 2 brief it.” Cmty. House, Inc. v. City of Boise, 623 F.3d 945, 959 n.2 (9th Cir. 2010). 3 4 The citizenship of Ally, LLC—and the removability of this action—was therefore 5 “ascertainable” as of at least May 17. That date is over two months before this action 6 was ultimately removed, rendering removal untimely and remand appropriate. 7 8 B. Costs and Fees 9 10 “An order remanding the case may require payment of just costs and any actual 11 expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. 12 § 1447(c). “Absent unusual circumstances, courts may award [costs and expenses] under 13 § 1447(c) only where the removing party lacked an objectively reasonable basis for 14 seeking removal. Conversely, when an objectively reasonable basis exists, [an award] 15 should be denied.” Martin v. Franklin Cap. Corp., 546 U.S. 132, 141 (2005). 16 “[R]emoval is not objectively unreasonable solely because the removing party’s 17 arguments lack merit . . . .” Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062, 1065 (9th 18 Cir. 2008). A court may conclude that removal was objectively unreasonable when “the 19 relevant case law clearly foreclosed the defendant’s basis of removal.” Id. at 1066. 20 Whether to award costs and expenses is within a district court’s discretion. See Jordan v. 21 Nationstar Mortg. LLC, 781 F.3d 1178, 1184 (9th Cir. 2015). 22 23 The Court exercises its discretion to decline awarding costs and expenses here. 24 The attorney declaration that Serra included with his request is sparse, providing no basis 25 to justify the $650 hourly rate and few details on what research counsel did to prepare for 26 the motion. (See Dkt. 18-2 [Declaration of Robert J. Ounjian in Support of Plaintiffs’ 27 Memorandum of Points and Authorities in Support of Plaintiff’s Motion to Remand and 28 Request for Monetary Sanctions] ¶ 17.) Serra also presents no evidence of bad faith or

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1 || dilatoriness. And the timeliness issues raised herein, such as ascertaining the citizenship 2 ||of a limited liability company from a verification for a response to interrogatories, 3 ||required modestly new, and not entirely foreclosed, applications of case law. 5 || TI. CONCLUSION 7 For the foregoing reasons, Serra’s motion is GRANTED, and the request for costs 8 |jand fees is DENIED. This action is REMANDED to the Superior Court of California, 9 County of Orange. 10 1 DATED: October 21, 2022 Ko pe 12 ee. 7 13 CORMAC J. CARNEY 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28