Tracy v. 1835 Columbia Street LP

• Court: District Court, S.D. California
• Decided: December 1, 2023
• Docket: 3:23-cv-02066
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARK CHRISTOPHER TRACY, Case No.: 23-cv-2066-RSH-AHG

12 Plaintiff, ORDER REMANDING CASE 13 v. 14 1835 COLUMBIA STREET LP, 15 Defendant. 16 17 On November 9, 2023, the Court issued an Order to Show Cause, ordering the Parties 18 to show cause why this case should not be dismissed for lack of subject matter jurisdiction. 19 ECF No. 3. The Court’s OSC noted that Defendant filed a notice of removal based on 20 diversity jurisdiction. The Court explained that it was unable to determine the Parties’ 21 respective states of citizenship based on the record before it and that the forum defendant 22 rule under 28 U.S.C. § 1441(b)(2) may apply.1 On November 30, 2023, Defendant filed a 23 response to the Court’s OSC. ECF No. 4. As of the date of this Order, Plaintiff has not filed 24 a response. 25 26

27 1 28 U.S.C. § 1441(b)(2) provides that an action “may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in 28 1 The party seeking removal bears the burden of establishing federal jurisdiction. 2 || Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). 3 || “The removal statute is strictly construed, and any doubt about the right of removal requires 4 |lresolution in favor of remand.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 5 || 1244 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). 6 Defendant’s response confirms that all partners of its limited partnership are 7 || California citizens, such that Defendant is a citizen of California. ECF No. 4-1, Resendes 8 || Decl. 4] 2. The citizenship of Plaintiff, who alleged in his complaint that he is a resident of 9 || California but has not responded to the OSC, remains unresolved. With regard to the forum 10 defendant rule, Defendant maintains that this rule does not apply here because Defendant 11 |/has not been “properly . . . served.” ECF No. 4 at 2. Nevertheless, Defendant identifies a 12 ||split among federal district courts regarding the application of the forum defendant rule 13 || when a forum defendant has been properly joined but not served. See Regal Stone Ltd. v. 14 || Longs Drug Stores California, L.L.C., 881 F. Supp. 2d 1123, 1130 (N.D. Cal. 2012). 15 Defendant states, “Because there is doubt about jurisdiction, Defendant does not 16 || oppose remand, and requests the Court dismiss the action so the state court action may 17 ||resume.” ECF No. 4 at 3. The Court construes Defendant’s request for dismissal as its 18 ||agreement that the case should be remanded. 19 Accordingly, the Court hereby REMANDS this case to the San Diego County 20 || Superior Court. The Clerk of Court is DIRECTED to close the case. 21 IT IS SO ORDERED. Fehr C Low 22 || Dated: December 1, 2023 3 Hon. Robert S. Huie United States District Judge 24 25 26 27 28