Wick v. Wactor et.al.

• Court: District Court, N.D. California
• Decided: July 14, 2025
• Docket: 3:25-cv-05283
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 WILLIAM D. WICK, Case No. 25-cv-05283-JSC

8 Plaintiff, ORDER TO SHOW CAUSE WHY 9 v. ACTION SHOULD NOT BE REMANDED 10 JON K. WACTOR,

Defendant. 11

12 13 Jon Wactor removed this state law action to federal court on the basis of diversity 14 jurisdiction. There are many issues with the Notice of Removal. 15 First, the removal statute prohibits a case from being removed on the basis of diversity 16 jurisdiction “more than 1 year after commencement of the action.” 28 U.S.C. § 1446(c)(1). The 17 removed action was commenced in Superior Court in 2023, so removal appears untimely. 18 Second, Mr. Wactor contends diversity jurisdiction was established in February 2025 when 19 he moved to New Mexico. But the citizenship of the parties is determined at the time the 20 complaint is filed. Smith v. Sperling, 354 U.S. 91, 93, n.1 (1957). The Superior Court action was 21 filed in 2023 when Mr. Wactor was a citizen of California, as is Mr. Wick. 22 Third, under the federal removal statute, only a defendant can remove an action to federal 23 court. 28 U.S.C. § 1446(a). Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 104–05 (1941). 24 Mr. Wactor was the petitioner seeking to confirm an arbitration award in the removed state court 25 complaint. He offers no authority to support his assertion that Mr. Wick’s motion made him a de 26 facto defendant that permits him to belatedly remove this action to federal court. And the Court is 27 not aware of any. Indeed, not even a plaintiff against whom federal counterclaims are expressly 1 149, 152-53 (1908). 2 Finally, even if a plaintiff could be realigned as a defendant for purposes of removal, Mr. 3 Wactor has not shown realignment is proper. He cites only an out-of-circuit case with zero 4 || relevance to the circumstances alleged here. (Dkt. No. 1 at 5.) Under Ninth Circuit law, the Court 5 || realigns for jurisdictional purposes “those parties whose interests coincide respecting the primary 6 matter in dispute.” Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 873 7 (9th Cir. 2000) (quotation marks omitted). There is no other party whose interest coincides with 8 || Mr. Wactor; he merely wishes to switch sides so he can move the case to federal court at this late 9 stage. No law of which the Court is aware supports subject matter jurisdiction in that situation. 10 CONCLUSION 11 It appears this case was improperly removed to federal court. However, if Mr. Wactor 12 || believes removal was proper, then consistent with Federal Rule of Civil Procedure 11, he shall 5 13 show cause by July 22, 2025 how this Court has removal jurisdiction. If removal jurisdiction 14 cannot be established, then Mr. Wactor shall withdraw the Notice of Removal by the same date. 3 15 IT IS SO ORDERED. 16 || Dated: July 14, 2025

18 fut Stal CQUYELINE SCOTT CORLEY 19 United States District Judge 20 21 22 23 24 25 26 27 28