MORRISON C. ENGLAND, District Judge.
On April 4, 2019, Plaintiffs Timothy Gray and Dina Gray ("Mr. Gray," "Mrs. Gray," or "Plaintiffs") filed the present action in state court as a result of personal injuries they claim to have sustained while staying at an Extended Stay Hotel located in West Sacramento, California. Once service was accepted on behalf of Defendant Extended Stay America Management, LLC ("ESA" or "Defendant") on or about June 11, 2019, ESA removed the action to this Court on July 9, 2019, citing diversity of citizenship pursuant to 28 U.S.C. § 1441(b). Although additional defendants were named by Plaintiffs, including an individually-named California resident, ESA asserts that because it was the only properly joined and served defendant, complete diversity was nonetheless present.
Now before the Court is Plaintiffs' Motion to Remand the case back to the Superior Court of California for the County of Yolo where it was originally filed. Pls.' Mot. to Remand ("Pls.' Mot."), ECF No. 5. For the reasons set forth below, Plaintiffs' Motion is DENIED.
On or about September 14, 2017, Plaintiffs stayed at the Extended Stay America Hotel located at 795 Stillwater Road, West Sacramento, California. When Mr. Gray got up in the middle of the night to use the restroom, he slipped and fell due to water leaking from the ceiling and hit his head on the bathtub, thereby sustaining an injury. Pls.' Compl., pp. 4-5. Plaintiffs subsequently filed the present lawsuit, asserting causes of action for premises liability and negligence against ESA, Extended Stay America, Inc., and Laura Burke. As a result of her husband's injuries, Mrs. Gray also claims loss of consortium damages.
On May 10, 2019, counsel for ESA communicated to Plaintiffs' counsel that they would be representing ESA in this matter. Pls.' Mot. at 2:27-28. On May 22, 2019, Plaintiffs' counsel asked Defendant's counsel if they would accept service of process on ESA's behalf.
On July 9, 2019, less than 30 days following its execution of the Notice and Acknowledgment, ESA removed the matter to this Court. Although Extended Stay America, Inc. and an individual named Laura Burke were also named as Defendants, ESA pointed out that under 28 U.S.C. § 1446, as "the only Defendant properly joined and served to this action," it was entitled to independently effectuate removal on the basis of diversity of citizenship since "the existence of improperly joined and unserved Defendants will not deprive this court of jurisdiction."
Defendant asserts that Mr. and Mrs. Gray are, or were at the inception of this case, citizens and residents of California. Def.'s Notice of Removal, ¶ 6. ESA states that complete diversity is present because it is incorporated outside California with a principal place of business outside the state. According to Defendant, Burke is an improperly joined and unserved Defendant who does not deprive this Court of jurisdiction.
Plaintiffs disagree with Defendant's analysis and move to remand the case pursuant to 28 U.S.C. § 1447 on grounds that Defendant has not demonstrated, as it must, that complete diversity of citizenship is present under § 1441(b). Plaintiffs further claim that Defendant failed to timely remove the action within 30 days following its receipt through service or otherwise of Plaintiffs' complaint, as required by § 1446(b). Finally, Plaintiffs also argue that Defendant's removal was procedurally defective because it failed to attach, in accordance with § 1446(a), copies of all process, pleadings and orders served upon Defendant in state court prior to removal.
When a case "of which the district courts of the United States have original jurisdiction" is initially brought in state court, the defendant may remove it to federal court "embracing the place where such action is pending." 28 U.S.C. § 1441(a). There are two bases for federal subject matter jurisdiction: (1) federal question jurisdiction under 28 U.S.C. § 1331, and (2) diversity jurisdiction under 28 U.S.C. § 1332. A district court has federal question jurisdiction in "all civil actions arising under the Constitution, laws, or treaties of the United States."
A defendant may remove any civil action from state court to federal district court if the district court has original jurisdiction over the matter. 28 U.S.C. § 1441(a). "The party invoking the removal statute bears the burden of establishing federal jurisdiction."
According to Defendant's Notice of Removal, Plaintiffs are citizens and residents of the State of California. Def.'s Notice of Removal, ¶ 6. Plaintiffs do not dispute that they are California citizens. In addition, Plaintiffs do not dispute that the amount in controversy requirement for diversity jurisdiction pursuant to § 1332(a) has been satisfied. Plaintiffs do claim, however, that ESA has not demonstrated complete diversity because Defendant Burke is a California citizen, and Defendant did not sufficiently allege ESA's citizenship. Pls.' Mot. 1:24-28. Plaintiffs also allege, as indicated above, that Defendant's removal was untimely and procedurally defective since required state court pleadings were not attached to the petition for removal. Because Defendant, as the removing party, bears the burden of establishing their jurisdictional prerequisites, each of Plaintiffs' claims must now be addressed.
Plaintiffs first argue that while ESA's removal petition states unequivocally that it is a corporation organized under the laws of the State of North Carolina with its principal place of business located in North Carolina,
Plaintiffs' argument is unavailing. ESA's petition on its face indicates that ESA is a corporation organized under the laws of another state with its principal place of business also in another state, and a declaration appended to the petition attests to that fact.
"The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, or a copy of the initial pleading setting forth the claim . . ." 28 U.S.C. § 1446(b). In the absence of actual service having been effectuated by Plaintiffs, Defendant maintains that this 30-day period did not begin to accrue until it signed and returned the acknowledgment of receipt sent to Plaintiffs. Def.'s Opp'n, ECF No. 7 at 4:20-24. Meanwhile, Plaintiffs contend that an email sent to Defendant on May 22, 2019, asking Defendant's counsel if they would accept service on behalf of ESA, constitutes a "receipt by the defendant" for purposes of § 1446(b). Pls.' Mot. at 8:1-3. To support their argument, Plaintiffs cite to
When service of process becomes effective is governed by state law.
Plaintiffs' contention otherwise is utterly devoid of merit.
Defendant asks the Court to disregard Burke's citizenship for purposes of determining diversity, contending that Burke is an improperly joined defendant. Def.'s Opp'n at 3:3-4. Plaintiffs assert that Burke is a non-diverse defendant, making removal improper because courts have routinely considered the citizenship of non-served defendants.
Plaintiffs aver that the voluntary/involuntary rule applies in this case to bar Defendant's assertion of fraudulent joinder. Pls.' Reply, ECF No. 8 at 4:25-26. This rule dictates that if a resident defendant is dismissed from a case by a voluntary act by the plaintiff, then it is removable, but if the resident defendant is dismissed by the defendant's or court's action, then the case cannot be removed.
When it comes to Plaintiffs' claims against Burke, Defendant argues that there are no grounds in law or fact to impose liability on Burke for the alleged slip and fall at her place of work. Def.'s Opp'n at 3:12-13. The Court agrees. The Complaint has no substantive allegations against Burke. Moreover, Plaintiffs do not outline any conduct by Burke making her liable under the causes of action presented. For these reasons, the Court finds that Burke is an improperly joined defendant.
Section 1446(a) mandates that the Defendant's Notice of Removal have "a short plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders serviced upon such defendant or defendants in such action." 28 U.S.C. § 1446(a). Plaintiffs argue that Defendant failed to follow the procedures of § 1446(a) because Defendant did not attach the Civil Case Cover Sheet, Case Management Statement, ADR Packet, Notice and Acknowledgment of Receipt, and a state court order from April 4, 2019. Pls.' Mot. at 7:6-9. Instead, Defendant's removal petition appended only the Summons and Complaint along with Defendant's Answer filed in state court.
Even if Defendant did not include the above-enumerated documents in the Notice of Removal, for the most part they relate to the state court's management of this matter which terminated once removal was effectuated, or to process made within the confines of the state court action. As such, Defendant argues that any procedural defect in that regard is both de minimis and curable. The Court agrees.
Although Defendant claims it provided this Court with all "material" documents that provide the basis for its removal (
For the reasons stated above, Plaintiffs' Motion to Remand (ECF No. 5) is DENIED.
IT IS SO ORDERED.