Rezzonico et al v. Federal Signal Corporation et al
Filing
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ORDER granting 21 Motion to Remand to State Court. Remanding the case to the Superior Court of Arizona in Maricopa County. Signed by Judge Frederick J Martone on 10/3/11. (Attachments: # 1 remand letter)(DMT)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Crystal J. Rezzonico, et al.,
Plaintiffs,
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vs.
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Federal Signal Corporation, et al.,
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Defendants.
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No. CV-11-1539-PHX-FJM
ORDER
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The court has before it plaintiffs’ motion for remand (doc. 21), defendant TriMark
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Corporation’s response (doc. 23), defendant Indiana Mills & Manufacturing, Inc.’s (“IMMI”)
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response (doc. 24), defendants Federal Signal Corporation and E-One, Inc.’s joinder in the
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responses (doc. 25), and plaintiffs’ reply (doc. 27).
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This case arises out of a collision between a fire truck driven by plaintiff Crystal
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Rezzonico and defendant Jessica Varela. Rezzonico was ejected from the fire truck as a
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result of the collision and was severely injured. She claims that failures of the restraint
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system and door latch mechanism caused her to be ejected. She and members of her family
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filed this action in state court in August 2010, against Varela, an Arizona citizen, as well as
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manufacturers of the fire truck. Varela was served with the complaint on February 15, 2001,
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but has failed to respond.
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Defendants removed this case on August 5, 2011, and plaintiffs now move to remand.
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Under 28 U.S.C. § 1332, a district court has original jurisdiction over civil actions between
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citizens of different states, where the amount in controversy exceeds $75,000. An action
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brought in state court may be removed by the defendant to federal district court if the case
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could have been brought there originally. Id. § 1441. If it appears that the federal court lacks
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jurisdiction, the case must be remanded. Id. § 1447(c). Plaintiffs now argue that removal
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is not proper because defendant Jessica Varela is an Arizona resident.
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The burden of establishing federal jurisdiction is on the party seeking removal, and
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the removal statute is strictly construed against removal jurisdiction. Emrich v. Touche Ross
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& Co., 846 F.2d 1190, 1195 (9th Cir. 1988). In their notice of removal, defendants
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acknowledge that Varela is an Arizona resident who has been properly served. Defendants
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do not contend that Varela’s joinder was fraudulent. Instead, they argue that plaintiffs have
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acted affirmatively to dismiss their claims against Varela because (1) they have not taken her
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default within 5 months of service of the complaint, (2) they have not served her with various
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pleadings, and (3) they did not include her in the state court scheduling conference.
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First, the removal notice is facially deficient because defendant Varela was properly
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served, but has not consented to the removal. Generally, all properly served defendants must
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join in the petition for removal except for nominal, unknown or fraudulently joined parties.
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Id., at 1193 n.1; Destfino v. Reiswig, 630 F.3d 952, 956 (9th Cir. 2011). Because Varela has
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not consented to the removal, the removal is defective. We grant plaintiffs’ motion to
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remand on this basis.
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We also conclude that because Varela is an Arizona citizen, removal is improper
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because there is no diversity. Defendants have not satisfied their burden of showing that
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plaintiffs have voluntarily dismissed or abandoned their claims against Varela. No dismissal
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has been filed nor have the pleadings been amended so as to alter Varela’s status as a party
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defendant. To be sure, the exclusion of Varela from participating in the state court
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proceedings is either suspicious or sloppy, but plaintiffs now contend that they will prosecute
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their claims against Varela. Therefore, based on lack of diversity, we conclude that removal
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is not proper.
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IT IS ORDERED GRANTING plaintiffs’ motion for remand (doc. 21).
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IT IS FURTHER ORDERED REMANDING this case to the Superior Court of
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Arizona in Maricopa County.
DATED this 3rd day of October, 2011.
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