Beauregard et al v. Agro-Jal Farming Enterprises Incorporated et al

Filing 9

ORDER granting #6 Plaintiff's Motion to Remand to State Court. Clerk is directed to remand this case to Maricopa County Superior Court and close this matter. Signed by Judge John J Tuchi on 02/25/16. (Attachments: #1 Remand Letter)(GAR)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Alexandree-Ana Beauregard, et al.,
Plaintiffs,

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ORDER

v.

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No. CV-15-02397-PHX-JJT

Agro-Jal Farming Enterprises Incorporated,
et al.,

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Defendants.

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At issue is Plaintiffs’ Motion to Remand (Doc. 6), to which Defendant Agro-Jal

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Farming Enterprises, Inc. filed a Response (Doc. 7), and Plaintiffs filed a Reply (Doc. 8).

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For the reasons stated below, the Court grants Plaintiffs’ Motion to Remand.

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Plaintiffs filed the instant suit against Agro-Jal, a California corporation, and

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Tanita, an Arizona corporation, on March 20, 2015, in Maricopa County Superior Court.

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Tanita answered the Complaint on April 6, 2015, and Agro-Jal answered on April 28,

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2015. When Plaintiffs initially filed this action, it was not removable to federal court

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because Tanita’s presence would have destroyed complete diversity where most of the

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plaintiffs in this action are citizens of Arizona. See 28 U.S.C. § 1441(b)(2). On

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October 21, 2015, the parties filed a Stipulation to Dismiss Tanita Produce Company,

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Inc. with Prejudice in state court. On October 29, 2015, Judge Douglas Gerlach signed

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the Order of Dismissal of Tanita Produce Company, Inc. with Prejudice, and the Order

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was filed on November 2, 2015. On November 23, 2015, Agro-Jal filed a Notice of

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Removal in this Court. (Doc. 1.)

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Because diversity jurisdiction arose after Plaintiff filed the initial pleading,

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removal is governed by 28 U.S.C. § 1446(b)(3), which provides “a notice of removal may

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be filed within 30 days after receipt by the defendant, through service or otherwise, of a

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copy of an amended pleading, motion, order or other paper from which it may first be

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ascertained that the case is one which is or has become removable.” Plaintiffs contend

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this case was subject to removal on October 21, 2015 upon the parties’ filing of the

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Stipulation to Dismiss Tanita. Plaintiffs argue that Agro-Jal’s Notice of Removal was

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untimely because it was not filed within 30 days of the Stipulation and the Court should

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remand the case to state court. In response, Agro-Jal contends that the 30-day period was

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not triggered until the Order granting the dismissal of Tanita was filed on November 2,

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2015 and thus its Notice of Removal filed on November 23, 2015 was timely.

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No Ninth Circuit authority addresses whether a stipulation to dismiss constitutes a

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“motion, order or other paper from which it may first be ascertained that the case is one

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which is or has become removable,” triggering the 30-day period to file a notice of

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removal. 28 U.S.C. § 1446(b)(3). Generally, removal statutes are strictly construed

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against removal jurisdiction. See Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988). Prior

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to a court order granting a stipulation to dismiss a party that would destroy complete

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diversity jurisdiction in federal court, it is not clear that the case is, in that moment,

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removable. See Ariz. R. Civ. P. 41(a). However, § 1446(b)(3) does not require a court

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order to trigger the 30-day clock to file a notice of removal, but rather explicitly provides

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that a motion or other paper may suffice. The Court must give effect to each word of the

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statute, and reading § 1446(b)(3) to mean that the 30-day clock would only begin at the

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moment the case is removable based on a court order would render the terms “motion”

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and “other paper” meaningless. See United States v. Neal, 776 F.3d 645, 652 (9th Cir.

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2015). By including those terms, § 1446(b) contemplates that a defendant can ascertain

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that the case has become removable upon receipt of a motion or other paper – not just a

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court order granting the requested relief. See Moore v. Goodyear Tire & Rubber Co., No.

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CV-11-01174-NVW, 2011 WL 3684508, at *2 (D. Ariz. Aug. 23, 2011) (noting many

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other courts have found filings such as a notice of settlement suffice to make the case

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removable).

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The Court finds that Agro-Jal should have determined the case was one that had

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become removable under § 1446(b)(3) when it participated in the filing of the Stipulation

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to Dismiss Tanita, which it knew would result in diversity amongst the remaining parties.

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Accordingly, the Court finds the Stipulation to Dismiss Tanita was a motion or other

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paper from which Agro-Jal could have first ascertained that the case had become

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removable, and the 30-day clock began when the Stipulation was filed on October 21,

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2015. See 28 U.S.C. § 1446(b). Agro-Jal’s Notice of Removal filed November 23, 2015,

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was untimely and, in accordance with 28 U.S.C. § 1447(c), the Court must remand this

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case.

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IT IS THEREFORE ORDERED granting Plaintiffs’ Motion to Remand (Doc. 6).

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IT IS FURTHER ORDERED that the Clerk is directed to remand this case to

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Maricopa County Superior Court and close this matter.
Dated this 25th day of February, 2016.

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Honorable John J. Tuchi
United States District Judge

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