Tracy v. 1835 Columbia Street LP
- Proceeding
- district
- Area
- civil
- Panel
- Robert Steven Huie (author)
Analysis
The court reviewed a notice of removal based on diversity jurisdiction where the defendant admitted to being a California citizen, creating a potential bar under the forum defendant rule. The court remanded the case to the San Diego County Superior Court and ordered the case closed.
| What the court decided | The model |
|---|---|
Remand to state court“Accordingly, the Court hereby REMANDS this case to the San Diego County Superior Court.” | agree with court The court correctly applied the principle that the removing party bears the burden of establishing jurisdiction and that doubts regarding removal are resolved in favor of remand. Because the defendant admitted to being a California citizen (a forum state citizen) and the plaintiff is a California resident, complete diversity is absent. Furthermore, the defendant's argument that the forum defendant rule does not apply because it was not 'served' is legally incorrect under Ninth Circuit precedent, which focuses on whether the defendant was 'properly joined.' Given the defendant's concession of citizenship and the resulting jurisdictional defect, remand is the only appropriate remedy. |
The order itself: sound — The order is procedurally sound and reaches the correct result. It correctly identifies the burden on the removing party and applies the strict construction of removal statutes. The court appropriately notes that the defendant's admission of California citizenship, combined with the plaintiff's California residency, defeats diversity jurisdiction. The court also correctly identifies the legal issue regarding the 'properly joined' vs. 'served' distinction in the forum defendant rule, although it does not need to resolve the split because the lack of complete diversity is dispositive. The order is concise and relies on binding Ninth Circuit authority.
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