EDWARD M. CHEN, United States District Judge.
Plaintiff Markell Pool initiated this lawsuit in state court against the following defendants:
The first three defendants above shall hereinafter be referred to collectively as the "Roche Defendants." The last two defendants shall hereinafter be referred to collectively as the "Genentech Defendants." According to Mr. Pool, the Roche Defendants were responsible for manufacturing, marketing, and/or selling an antimalarial drug known as Lariam but failed to adequately warn about its toxic effects and thus are liable to him. He claims that the Genentech Defendants are also liable based on a theory of successor liability.
After Mr. Pool filed suit, four of the five defendants — i.e., all defendants except for FHLR — removed the case to federal court. See Docket No. 1 (notice of removal). These four defendants shall hereinafter be referred to as the "Removing Defendants." According to Removing Defendants, removal was proper based on diversity jurisdiction, once the citizenship of the fraudulently joined defendants (i.e., the Genentech Defendants) was ignored.
Following removal, all five defendants filed motions to quash and/or dismiss. See Docket No. 8 (FHLR's motion); Docket No. 10 (Genentech Defendants' motion); Docket No. 11 (HLR and Roche Labs' motion). Mr. Pool then filed a motion to remand, and the parties agreed that the motion to remand should be addressed before the five defendants' motions. See Docket No. 32 (stipulation and order). Currently pending before the Court is Mr. Pool's motion to remand.
Having considered the parties' briefs and accompanying submissions, as well as all other evidence of record, the Court hereby
In his complaint, Mr. Pool alleges as follows.
Mr. Pool was previously part of the U.S. military. See Compl. ¶¶ 2, 14. The Roche Defendants "marketed and sold Lariam to the U.S. military for service members deployed to Somalia [in the 1990s] for the prevention of malaria." Compl. ¶ 2. Mr. Pool was deployed to Somalia during this time and took Lariam while there. See Compl. ¶ 3; see also Compl. ¶ 14.
Lariam is extremely toxic. See Compl. ¶ 1; see also Compl. ¶ 5 (alleging that, "after taking the drug, a sizeable group of soldier have severe and irreversible symptoms that mimic the symptoms of post-traumatic
In 2013, the FDA "slapped a `blackbox' warning on the drug." FAC ¶ 11. "After the FDA warning, the U.S. military immediately changed its Lariam prescribing policies," "re-designating Lariam as a drug of last resort after other malaria prevention drugs were found to be ineffective." Compl. ¶ 12.
Mr. Pool seeks to hold the Roche Defendants liable because they were responsible for manufacturing, marketing, and/or selling Lariam. According to Mr. Pool:
Mr. Pool seeks to hold the Genentech Defendants (both Delaware corporations) liable on a successor liability theory. In 2009, Genentech was acquired by a Roche entity. According to Mr. Pool, after the acquisition of Genentech in 2009, Roche Labs essentially transferred its "military-Lariam business" to the Genentech Defendants — i.e., the Genentech Defendants "became the mere continuation of Roche Lab[s] with respect to the military-Lariam line of business." Compl. ¶ 50.
Based on, inter alia, the above allegations, Mr. Pool has asserted the following causes of action:
As noted above, the Removing Defendants removed this case to federal court on the basis of diversity jurisdiction. Thus, citizenship of the parties is a critical issue.
Mr. Pool is a citizen of California. He alleges that most of the other defendants are also citizens of California (and thus there is not complete diversity), not because of their state of incorporation but rather because of their principal places of business.
For example, Mr. Pool alleges that HLR and Roche Labs both have their principal places of business in South San Francisco, California, and not Little Falls, New Jersey (as the Removing Defendants claim).
Mr. Pool also alleges that the Genentech Defendants have their principal places of business in South San Francisco — a fact that the Removing Defendants do not dispute. However, the Removing Defendants claim that the Genentech Defendants have been fraudulently joined to this case and thus their California citizenship should be disregarded.
Title 28 U.S.C. § 1441 provides in relevant part "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed." 28 U.S.C. § 1441(a). "A defendant may remove an action to federal court based on federal question jurisdiction or diversity jurisdiction. However, [i]t is to be presumed that a cause lies outside [the] limited jurisdiction [of the federal courts] and the burden of establishing the contrary rests upon the party asserting jurisdiction." Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (internal quotation marks omitted). Thus, in a removal situation, the defendant has the burden of proving jurisdiction, and the burden of proof is preponderance of the evidence. See Geographic Expeditions, Inc. v. Estate of Lhotka, 599 F.3d 1102, 1106-07 (9th Cir. 2010). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (emphasis added); see also Hunter, 582 F.3d at 1042 ("The `strong presumption against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper,' and that the court resolves all ambiguity in favor of remand to state court.") (emphasis added).
In light of the above, the Removing Defendants bear the burden of proving the diversity of citizenship between HLR/Roche Labs and Mr. Pool in the instant case. See Sheets, 2018 WL 6428460, at *3, 2018 U.S. Dist. LEXIS 207248, at *9 (stating that "the burden with regard to citizenship rests with HLR [defendant], not Plaintiffs"); see also Int'l Cultural Exch. Grp. v. Harifa, Inc., No. 5:14-cv-03014-PSG, 2014 WL 5454380, at *3, 2014 U.S. Dist. LEXIS 152681, at *7 (N.D. Cal. Oct. 27, 2014) (stating that "there is no dispute that as the removing parties, Defendants bear the burden of proving the diversity of their citizenship from that of ICEG [plaintiff][;] Defendants do not dispute they bear this burden, nor do they dispute that this court must resolve all doubts as to the parties' diversity of citizenship in favor of remand").
As for fraudulent joinder (as noted above, here, the Removing Defendants argue that the California citizenship of the Genentech Defendants may be disregarded because they were fraudulently joined to the lawsuit), the Ninth Circuit has noted that
GranCare, LLC v. Thrower, 889 F.3d 543, 548-49 (9th Cir. 2018) (emphasis in original).
Notably, in GranCare, the Ninth Circuit underscored that a fraudulent joinder analysis is not the same as a 12(b)(6) analysis, although there are "some similarities." Id. at 549.
Id. at 549-50. In other cases, the Ninth Circuit has also held that "[f]raudulent joinder must be proven by clear and convincing evidence." Hamilton Materials Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007) (emphasis added).
As an initial matter, the Court addresses Mr. Pool's argument that the motion to remand can be easily granted because the Removing Defendants' notice of removal was defective. More specifically, Mr. Pool asserts that the notice failed to allege what the citizenship of Roche Labs
Mr. Pool is correct that the original notice of removal failed to address the citizenship of Roche Labs. But he is incorrect that a defective allegation of jurisdiction cannot be cured. Title 28 U.S.C. § 1653 provides: "Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." 28 U.S.C. § 1653. And the main case on which Mr. Pool relies — Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) — specifically noted that § 1653 allows for the curing of defective allegations regarding citizenship. See id. at 857-58 (noting that the defendant had failed to specify what the plaintiffs' state citizenship was, instead only referring to their state residence, but adding that the defendant "could potentially have cured its defective allegations regarding citizenship by amending its notice of removal") (citing § 1653). Furthermore, the district court cases that Mr. Pool cites all fail to address § 1653.
To the extent Mr. Pool suggests that a defect may be cured only within the thirty-day period for removing a case to federal court, he is also incorrect. He does have a district court case to support his position (although, as noted above, that case failed to discuss § 1653). See Contreras v. BMS of N. Am., LLC, No. CV 18-8014 PA (MAAx), 2018 WL 4849107, at *3, 2018 U.S. Dist. LEXIS 172828, at *5 (C.D. Cal. Oct. 18, 2018) (noting that defendant failed to allege its own citizenship; although defendant filed an amended notice of removal, it was filed "after the Court had already identified the defect in the original Notice of Removal and more than 30 days after [the defendant] was served with the Summons and Complaint" and thus concluding that "the Amended Notice of Removal does not cure the procedural defect in the original Notice of Removal") (emphasis in original). But § 1653 on its face does not put any time limits on amendment, and, as the Moore's treatise notes, "[s]ection 1653's liberal amendment rule permits a party who has not alleged that diversity exists to amend the pleadings even as late as on appeal." 15A Moore's Fed. Prac. — Civ. § 102.17[a] (emphasis added). In addition, the Ninth Circuit has indicated that an amendment after the thirty-day period is permissible:
ARCO Envtl. Remed., L.L.C. v. Dep't of Health & Envtl. Quality, 213 F.3d 1108, 1117 (9th Cir. 2000) (emphasis added).
Accordingly, the notice of removal was not procedurally defective.
Although the defect in the removal notice is curable, Mr. Pool ultimately prevails on the merits on his motion to remand. The Court addresses first the issue of whether the Genentech Defendants — who are undisputedly California citizens — were fraudulently joined to this lawsuit.
As noted above, Mr. Pool maintains that the Genentech Defendants are liable based on a successor liability theory. The main case on which Mr. Pool relies with respect to successor liability is Cleveland v. Johnson, 209 Cal.App.4th 1315, 1327, 147 Cal.Rptr.3d 772 (2012). In Cleveland, the plaintiffs were two individuals who entered into an agreement with a company, ISI, under which the plaintiffs would provide $75,000 in capital to ISI so that it could develop a new business (an Internet service provider) to be known as The Central Connection. In turn, the plaintiffs were to receive 100% of the net cash receipts from the Internet project until all capital invested had been recouped; after that, the plaintiffs were to be paid 5% of gross receipts from the project. See id. at 1320, 147 Cal.Rptr.3d 772.
Several years after entering into the agreement, the plaintiffs were told that the Internet project failed. See id. at 1321, 147 Cal.Rptr.3d 772. However, the plaintiffs later discovered that the president of ISI had set up a business known as IS West that was similar to The Central Connection; IS West was a lucrative business. See id. at 1324, 147 Cal.Rptr.3d 772. The plaintiffs thus filed suit, claiming that there was "a design and scheme `to hijack the internet service provider business enterprise then known as Central Connection [now known as IS West], for [defendants'] own use and profit without the burden of the obligations owed to [the plaintiff].'" Id. The plaintiffs sued both the ISI president and IS West itself. According to the plaintiffs, IS West was liable for breach of contract because, inter alia, it was the successor to ISI. See id. More specifically, the plaintiffs argued that "IS West was the successor of ISI `dba The Central Connection,' not ISI as a corporate entity." Id. at 1326, 147 Cal.Rptr.3d 772 (emphasis added). A jury found in favor of the plaintiffs on the successor liability theory. See id. at 1325, 147 Cal.Rptr.3d 772.
On appeal, the defendants contested the successor liability theory. The court rejected the defendants' argument:
Id. at 1326, 147 Cal.Rptr.3d 772.
The court explained that, for purposes of successor liability,
Id. at 1327, 147 Cal.Rptr.3d 772.
For the third successor liability theory above — i.e., the mere continuation theory, "it has long been held that `corporations cannot escape liability by a mere change of name or a shift of assets when and where it is shown that the new corporation is, in reality, but a continuation of the old.'" Id.
Id. (emphasis in original).
The court went on to note that the jury was instructed on the mere continuation theory and the question before it was essentially "one of law: may the doctrine of successor liability be applied to a corporation that succeeds to the assets of an unincorporated, but clearly separate, line of business of another corporation?" Id. at 1328, 147 Cal.Rptr.3d 772. According to the court, "[w]e see no reason why the doctrine of successor liability should not be applied, and defendants offer no case law expressly forbidding its application." Id. Indeed, there was case law to support the application of successor liability — recognizing, for example, that "recognition of the fiction of separate corporate existence [as opposed to continuation] would foster an injustice or further a fraud." Id.
Id. at 1329, 147 Cal.Rptr.3d 772.
The court also rejected the defendants' argument that successor liability should not apply because "doing business under a fictitious business name [i.e., The Central Connection] does not create a separate legal entity" from ISI. Id. at 1330, 147 Cal.Rptr.3d 772. The court explained that
Id. at 1330-31, 147 Cal.Rptr.3d 772 (emphasis added). Compare Garcia v. New Albertson's, Inc., No. 2:13-CV-05941-CAS (JCGx), 2014 WL 4978434, at *12, 2014 U.S. Dist. LEXIS 142422, at *38 (C.D. Cal. Oct. 3, 2014) (stating that "[c]omparable equitable considerations are absent here[;] [u]nlike in Cleveland, the entity that allegedly wronged plaintiff is an active company that retains most of its pre-sale assets, easily sufficient to satisfy a judgment for plaintiff").
In his complaint, Mr. Pool makes allegations that map the legal landscape on the successor liability/mere continuation theory laid out in Cleveland. To wit:
Compl. ¶¶ 47-51 (emphasis added).
Given these allegations in the complaint, it is possible that a state court would find in Mr. Pool's favor on the successor liability/mere continuation theory, and therefore remand is appropriate. See GranCare, 889 F.3d at 548-49 (emphasizing that, "`if there is a possibility that a state court would find that the complaint states a cause of action against any of the resident defendants, the federal court must find that the joinder was proper and remand the case to the state court'") (emphasis in original).
The Removing Defendants' arguments to the contrary are not persuasive. For example, the Removing Defendants assert that there can be no successor liability where the predecessor company (here, HLR and/or Roche Labs) still exists. But Cleveland indicates otherwise — i.e., there, only a line of business was transferred from ISI to IS West, but the court still considered the possibility of successor liability.
The Removing Defendants also make much of the fact that the Genentech Defendants never sold Lariam. See, e.g., Docket No. 1-4 (Gray Decl. ¶¶ 2-3) (testifying that "[t]he last lots of Lariam for U.S. distribution were manufactured in December of 2005" and that the last lots "expired in December 2008," i.e., before Genentech was acquired in 2009); Docket No. 1-3 (letter, dated February 2019, from Defense Logistics Agency, in response to a FOIA request, stating that "the product [Lariam] was no longer purchased after September 2008," i.e., before Genentech was acquired in 2009)
Finally, the Removing Defendants maintain that "the facts of the instant case are so far removed from those present in Cleveland that successor liability cannot, as a matter of fact and law, be applied." Opp'n at 17. But Cleveland explains that successor liability is ultimately about equity. Here, it is possible that a state court could find, as an equitable matter, that the Genentech Defendants should have successor liability because the relevant Roche parent made a decision to spin off HLR or Roche Labs' commercial operations — or at least the military line of business — into the Genentech Defendants without adequate consideration being given to HLR or Roche Labs. The Removing Defendants argue that successor liability makes no sense here because Mr. Pool is "attempt[ing] to apply the reverse of successor liability (i.e., he attempts to impute liability to the purchased corporation [Genentech]), whereas successor liability imputes the liability of the purchased corporation to the purchasing corporation [a Roche entity]." Opp'n at 17 (emphasis added). Although, as a formal matter, a Roche
That a Genentech Defendant could be a mere continuation is suggested by not only the allegations in the complaint but also by evidence submitted by Mr. Pool. More specifically, Mr. Pool has offered evidence indicating that a Roche parent made a purposeful decision to spin off HLR/Roche Labs' commercial operations to a Genentech entity in South San Francisco. For example:
The Removing Defendants protest that the above evidence is hearsay. Cf. M.E.S., Inc. v. Snell, 712 F.3d 666, 671 (2d Cir. 2013) (stating that, where a defendant files a Rule 12(b)(1) motion to dismiss, a court is "permitted to rely on non-conclusory, non-hearsay statements outside the pleadings"). This argument lacks merit. Mr. Pool has raised at least a potentially meritorious argument that the evidence is not hearsay — i.e., because the evidence comes from a Roche parent website, it amounts to a party admission or at least has sufficient indicia of reliability to fall within the residual exception to the hearsay rule. See Fed. R. Evid. 801(d)(2), 807. Defendants fail to negate the possibility that a state court could find successor liability. Notably, defense counsel conceded at the argument that HLR now only has but three employees and that at least some of its operational functions were taken over by a Genentech entity. There is thus a substantial basis from which a state court might infer successor liability.
Accordingly, the Court holds that, because the Removing Defendants have failed to carry its heavy burden of proving that the Genentech Defendants were fraudulently joined, there is no diversity of citizenship and thus removal of the instant case was not proper.
There is a second, independent basis that also supports remand. More specifically, the Removing Defendants have failed to meet their burden of showing that HLR and La Roche are not citizens of California. Or, to state the matter somewhat differently, the Removing Defendants have failed to establish that the principal places of business for the two companies are in Little Falls, New Jersey.
In evaluating what are the principal places of business for HLR and Roche Labs, the Court first takes into account the Supreme Court's decision Hertz Corp. v. Friend, 559 U.S. 77, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010). There, the Supreme Court addressed the definition of "principal place of business" as used in the diversity jurisdiction statute, 28 U.S.C. § 1332. The Court stated, in relevant part, that
Id. at 80-81, 130 S.Ct. 1181 (emphasis added). The Court added that, "in practice," the nerve center
Id. at 93, 130 S.Ct. 1181.
Notably, the Supreme Court rejected the proposition that a corporation's principal place of business is determined by "the amount of a corporation's business activity State by State" — i.e., "[i]f the amount of activity is significantly larger or substantially predominates in one State, then that State is the corporation's principal place of business" and, only "[i]f there is no such State, then the principal place of business is the corporation's nerve center, i.e., the place where the majority of its executive and administrative functions are performed." Id. at 82, 130 S.Ct. 1181. This was, relatively speaking, too complicated an approach. See id. at 90, 130 S.Ct. 1181 (noting that "a general `business activities' approach has proved unusually difficult to apply" — e.g., "[c]ourts must decide which factors are more important than others: for example, plant location, sales or servicing centers; transactions, payrolls, or revenue generation"); id. at 94, 130 S.Ct. 1181 (noting that a "more general business activities test" "invites greater litigation and can lead to strange results" — e.g., "if a corporation may be deemed a citizen of California on th[e] basis of activities [that] roughly reflect California's larger population... nearly every national retailer — no matter how far flung its operations — will be deemed a citizen of California for diversity purposes") (internal quotation marks omitted).
The Supreme Court acknowledged "there will be hard cases" even under the nerve center test — e.g., "in this era of telecommuting, some corporations may divide their command and coordinating functions among officers who work at several different locations, perhaps communicating over the Internet"; nevertheless, the Court still found the nerve center test more appropriate than the more general business activities test:
Id. at 96, 130 S.Ct. 1181 (emphasis added).
The Supreme Court also
Id. (emphasis in original). But, it explained, "in view of the necessity of having a clearer rule, we must accept [such anomalies]." Id.
Judge Tigar's Sheets case is instructive on the issue of principal place of business. See Sheets v. F. Hoffmann-La Roche Ltd., No. 18-cv-04565-JST, 2018 WL 6428460, 2018 U.S. Dist. LEXIS 207248 (N.D. Cal. Dec. 7, 2018). This is especially so given that Sheets is similar to the instant case — i.e., the plaintiff claimed that he suffered injury after taking Lariam while he was in the military and thus sued FHLR, HLR, and Genentech. HLR and Genentech removed the plaintiff's case from state to federal court, and the plaintiff responded by filing a motion to remand. The plaintiff was represented by the same counsel who represent Mr. Pool here.
Judge Tigar held that the removing defendants (HLR and Genentech) failed to meet their burden of showing that removal was proper: "The Plaintiffs have submitted considerable evidence [such as Roche-branded press releases, internal documents, and public websites] showing that HLR's operational, administrative, and executive functions shifted from New Jersey to California once Roche Holding acquired Genentech in 2009." Id. at *2, 2018 U.S. Dist. LEXIS 207248, at *6.
Judge Tigar continued: "By contrast, the evidence in support of HLR having its nerve center in New Jersey is both slight and equivocal." Id. at *3, 2018 U.S. Dist. LEXIS 207248, at *7. Although the removing defendants
Id. at *3, 2018 U.S. Dist. LEXIS 207248, at *7-8. As for the fact that board meetings took place in New Jersey, that was not particularly meaningful given that, under Supreme Court law, "the principal place of business is usually `not simply an office where the corporation holds its board meetings,' but rather `the actual center of direction, control, and coordination, i.e., the "nerve center[.]"'" Id. at *3, 2018 U.S. Dist. LEXIS 207248, at *8-9 (emphasis in original).
Finally, Judge Tigar addressed the defendants' contention that
Id. at *3, 2018 U.S. Dist. LEXIS 207248, at *9.
The Sheets decision itself is not dispositive here. Mr. Pool does not argue that HLR and Roche Labs are subject to collateral estoppel because of Sheets. In addition, the record being presented to the Court here appears to be somewhat different from that presented to Judge Tigar in Sheets (although, admittedly, Mr. Pool presents much of the same evidence). Nevertheless, Sheets is instructive on whether the Removing Defendants satisfied their burden of proving the principal places of HLR and Roche Labs are in Little Falls, New Jersey rather than South San Francisco, California.
As noted above, in Hertz, the Supreme Court held that "principal place of business" means the corporation's nerve center, i.e., "the place where the corporation's high level officers direct, control, and coordinate the corporation's activities." Hertz, 559 U.S. at 80, 130 S.Ct. 1181. "[I]n practice," the nerve center
Id. at 93, 130 S.Ct. 1181 (emphasis added).
In the instant case, where the center of direction, control, and coordination is complicated by the fact that the high-level officers are not all in one location. See id. at 96, 130 S.Ct. 1181 (acknowledging that, "in this era of telecommuting, some corporations may divide their command and coordinating functions among officers who work at several different locations, perhaps communicating over the Internet"). This appears to be true for both HLR and Roche Labs.
For HLR, the Removing Defendants have submitted a declaration from HLR's Assistant Secretary, Gerald Bohm, in which he testifies that the company's acting officers "include" five persons, four of whom are based in Little Falls, New Jersey, and one of whom is based in Nutley, New Jersey. See Bohm Decl. ¶ 15. But this declaration fails to tell the whole story. While the acting officers technically "include" these five people, a declaration that Mr. Bohm submitted in the Sheets case makes clear that HLR actually has "seven directors and officers." Creed Decl., Ex. 24 (Sheets Bohm Decl. ¶ 6 & Ex. A) (HLR's 2018 Annual Report). And notably, the two people that Mr. Bohm failed to mention in the declaration submitted to this Court are both based in South San Francisco, California — i.e., Sean A. Johnston (Director, Secretary, and Vice President) and Bruce Resnik (Vice President). See Creed Decl., Ex. 24 (Sheets Bohm Decl., Ex. A).
The Court acknowledges that, when all seven people are considered, the sheer numbers do weigh in favor of Little Falls, New Jersey, over South San Francisco, California (four to two). But sheer numbers are not dispositive. Without an understanding of what each director or officer actually does for HLR as a practical matter, where the nerve center of the company is cannot be determined. For example, if Mr. Johnston and Mr. Resnik were primarily responsible for the direction, control, and coordination of HLR, and the remaining individuals simply
That Mr. Bohm states in his declaration that HLR's "decisions are made out of Little Falls," Bohm Decl. ¶ 11, is not sufficient to show that Little Falls is in fact the nerve center of the company. That statement is entirely conclusory in nature. As for Mr. Bohm's statement in his removal declaration that "HLR's corporate activities are run by myself in Little Falls, New Jersey via unanimous consent of HLR's Officers and Directors," Docket No. 1-5 (Bohm Decl. ¶ 6), the Court does not understand this to mean that Mr. Bohm is, in effect, the sole decisionmaker of HLR. Such testimony could not be squared with testimony in his former declaration, indicating that there are other HLR officers who also perform substantive job functions. See Bohm Decl. ¶¶ 15-16 (testifying that five of the seven officers "perform[] [their] job functions" in New Jersey). Nor does it appear to account for the fact that Mr. Johnston, in California, has been identified as the CEO.
As for Roche Labs, the Removing Defendants again rely on the Bohm declaration, wherein Mr. Bohm testifies that the company's acting officers "include" three persons, all based in Little Falls, New Jersey, and one of whom is based in Nutley, New Jersey. See Bohm Decl. ¶ 15. But, as above, this declaration is less than forthcoming because it omits Mr. Johnston. And similar to above, Mr. Johnston is listed in a California state filing as the CEO of Roche Labs. See Creed Decl., Ex. 25 (Statement of Information, filed with the California Secretary of State).
Given the above doubts about the propriety of removal, the Court finds — as Judge Tigar did in Sheets — that a remand is appropriate, more specifically, on the basis that the Removing Defendants failed to meet their burden of proving that the nerve center is in fact Little Falls for HLR and Roche Labs. The Court need not consider whether Mr. Pool should be given jurisdictional discovery to explore the issue of nerve center precisely because it is the Removing Defendants' burden to prove diversity of citizenship and, clearly, the Removing Defendants should have had in their possession, custody, or control information about where the nerve center is for HLR and Roche Labs but failed to produce sufficient persuasive evidence. See Sheets, 2018 WL 6428460, at *3, 2018 U.S. Dist. LEXIS 207248, at *9 (finding "Plaintiffs' request for jurisdictional discovery... moot" in light of the ruling that the removing defendants failed to meet their burden of proving that removal was proper). Compare Anwar v. Fairfield Greenwich, Ltd., No. 09 Civ. 0118 (VM) (THK), 2009 WL 1181278, at *4, 2009 U.S. Dist. LEXIS 37077, at *17 (S.D.N.Y. May 1, 2009) (granting defendants discovery with respect to information about plaintiffs because defendants "have demonstrated that `a more satisfactory showing of the facts' will aid the District Court in ascertaining jurisdiction").
For the reasons stated above, the Court grants Mr. Pool's motion to remand. The only question remaining is whether Mr. Pool is entitled to attorney's fees and costs. See 28 U.S.C. § 1447(c) ("An order remanding the case may require payment of just costs and any actual expenses, including
For the foregoing reasons, the Court hereby
The Clerk of the Court is ordered to remand the case back to state court and close the file in the case.
This order disposes of Docket No. 31.
