Don’t Remove A Case to Federal Court Before Ascertaining Whether The Statute Permits It.


Defendants sued in the state court have a right to remove a case to federal court if there is diversity of citizenship and all defendants join the removal petition.  Here, the Defendants removed the lawsuit from the California courts to federal court before they determined the citizenship of each of the parties. Diversity must be complete. In other words, if a citizen of California sues another citizen of California, there is no diversity and no jurisdiction. Here, the court issued a rule to show cause to require the Defendants to justify the removal petition. They did not respond, but instead sought additional time. The court remanded the case back to state court.

The reasoning:

By failing to respond to the Order to Show Cause Defendants have not assuaged the Court’s concerns regarding jurisdiction. In order to invoke this Court’s diversity jurisdiction, Defendants must demonstrate there is complete diversity of citizenship between the parties and that the amount in controversy exceeds $75,000. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). To meet their burden to establish complete diversity, Defendants must allege the actual citizenship of all of its members/partners. Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). Here, the vague assurances provided that all entities related to Defendants are Delaware entities with their principal places of business in New York, NY are not sufficient. Furthermore, the myriad of reasons[1] provided by Defendants for needing more time to comply with the OSC is evidence that Defendants have not determined the existence of complete diversity between the parties. Thus, although being given the opportunity to do so, Defendants have not met their burden of demonstrating there is complete diversity of citizenship.

Because Defendants fail to establish diversity jurisdiction as required by 28 U.S.C. § 1332 and 1441 removal was improper and the Court sua sponte REMANDS this action back to the San Diego Superior Court for lack of subject matter jurisdiction.

via EP EX REL. PRESTON v. CHULA VISTA CENTER, LP, Dist. Court, SD California 2018 – Google Scholar

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