Anthony Jackson v. Metal Improvement Company et al

Filing 43

ORDER TO SHOW CAUSE by Judge Jacqueline H. Nguyen. Accordingly, the Court ORDERS defendants TO SHOW CAUSE, in writing, by nolater than May 7, 2012, why this action should not be remanded for the reason noted above. This deadline shall not extend the time for responding to any motion for remand filed by Plaintiff. Plaintiff may submit a response in the same time period. Plaintiff must submit a response within 30 days of the date of removal if the defects are procedural and plaintiff objects and requests remand. (rrey)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:12-cv-01755-JHN-CWx

Title

Anthony Jackson v. Metal Improvement Co. et al.

Present: The
Honorable

Date

April 19, 2012

Jacqueline Nguyen

Chris Silva
Deputy Clerk

Not present
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not present

Not present

Proceedings:

ORDER TO SHOW CAUSE RE REMAND TO STATE COURT
(In Chambers)

On March 1, 2012, this action was removed to this Court pursuant to 28 U.S.C. § 1441.
However, the jurisdictional allegations appear to be defective for the reason opposite the
box checked:
[ ]

Removal is on the basis of federal question jurisdiction pursuant to 28
U.S.C. § 1331 but it appears that the claims may not “arise under” federal
law.

[ ]

Removal is on the basis of federal question jurisdiction pursuant to 28
U.S.C. § 1331 on grounds of the artful pleading doctrine but the claims do
not appear to be completely preempted.
See, e.g., Beffa v. Bank of the
West, 152 F.3d 1174, 1177 (9th Cir. 1998) (“The preemptive scope of EFAA
described in § 4007 and the relevant portions of Regulation CC, 12 C.F.R. §
229.20, is quite narrow. Only state laws that establish different timing or
disclosure requirements than EFAA or otherwise directly conflict with
EFAA face preemption. Congress expressed no desire to preempt state laws
or causes of action that supplement, rather than contradict, EFAA”).

[ ]

Removal is on the basis of diversity jurisdiction pursuant to 28 U.S.C. §
1332(a), but all plaintiffs are not diverse from all defendants. See
Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806).

CV-90 (06/04)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:12-cv-01755-JHN-CWx

Date

Title

April 19, 2012

Anthony Jackson v. Metal Improvement Co. et al.

[ ]

Removal is on the basis of diversity jurisdiction pursuant to 28 U.S.C. §
1332, but the pleadings set forth the residence, rather than the citizenship, of
some of the parties. Diversity is based on citizenship.

[ ]

Removal is on the basis of diversity jurisdiction pursuant to 28 U.S.C. §
1332, but the pleadings fail to allege the citizenship of some of the parties.

[ X ] Removal is on the basis of diversity jurisdiction pursuant to 28 U.S.C. §
1332. A partnership, limited liability company, or other unincorporated
association is joined as a party. The Court must consider the citizenship of
each of the partners, including limited partners, or members. The citizenship
of each of the entity’s partners or members must therefore be alleged.
Carden v. Arkoma Assocs., 494 U.S. 185 (1990); United Steelworkers v.
Bouligny, Inc., 382 U.S. 145 (1965); Johnson v. Columbia Props.
Anchorage, LP, No. 04-35671, 2006 U.S. App. LEXIS 3264 (9th Cir.
February 10, 2006); Rockwell Int’l Credit Corp. v. U.S. Aircraft Ins. Group,
823 F.2d 302 (9th Cir. 1987).
[ ]

CV-90 (06/04)

Removal is on the basis of diversity jurisdiction pursuant to 28 U.S.C. §
1332. Some of the parties are corporations. The notice of removal is
deficient because:
[ ] the notice of removal does not state both the respective state(s) of
incorporation and
principal place of business. 28 U.S.C. § 1332(c).
[ ] the jurisdiction averment by the defendants is patently insufficient under
28 U.S.C.
§ 1332(c).
Defendant(s) fail(s) to offer adequate facts to support the assertion that the
principal place of business stated in the notice is the corporate party’s
principal place of business. The Ninth Circuit determines a corporation’s
principal place of business by examining the entity’s “total activities,” which
takes into account all aspects of the corporation’s business, including where
its operations are located, where it supervises that business, and where it
employs persons and conducts its business. Indus. Tectonics, Inc. v. Aero
Alloy, 912 F.2d 1090, 1094 (9th Cir. 1990) (“[T]he principal place of
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:12-cv-01755-JHN-CWx

Date

Title

April 19, 2012

Anthony Jackson v. Metal Improvement Co. et al.

business should be the place where the corporation conducts the most
activity that is visible and impacts the public, so that it is least likely to
suffer from prejudice against outsiders.”). Accordingly, in determining a
corporate party’s principal place of business, this Court looks to the same
factors. This entails (1) determining the location of the majority of the
corporation’s (a) employees, (b) tangible property, and (c) production
activities, and (2) ascertaining where most of the corporation’s (a) income is
earned, (b) purchases are made, and (c) sales take place. Indus. Tectonics,
912 F.2d at 1094.
[ ]

Removal is on the basis of diversity jurisdiction pursuant to 28 U.S.C. §
1332, one or more of the parties is named in a representative capacity, and
the citizenship of the represented person is not alleged or appears not to be
diverse. 28 U.S.C. § 1332(c)(2).

[ ]

Removal is on the basis of diversity jurisdiction pursuant to 28 U.S.C. §
1332, but defendants fail to allege the existence of diversity jurisdiction both
at the time the action was commenced and at the time of removal. See
Strotek Corp. v. Air Transport Ass’n. of Am., 300 F.3d 1129, 11131-32 (9th
Cir. 2002).

[ ]

Removal is on the basis of diversity jurisdiction pursuant to 28 U.S.C. §
1332(a), but the amount in controversy does not appear to exceed $75,000.
Because the amount of damages plaintiff seeks is unclear from the
complaint, or appears to be $75,000, or less, defendants bear the burden of
proving facts to support jurisdiction, including the jurisdictional amount, by
a preponderance of the evidence. Gaus v. Miles, Inc., 980 F.2d 564, 566-67
(9th Cir. 1992). A “mere averment” that the amount in controversy exceeds
$75,000 is insufficient. Id. at 567. Neither does an allegation based on
information and belief constitute proof by a preponderance of the evidence.
Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004).

[ ]

Removal is on the basis of diversity jurisdiction pursuant to 28 U.S.C. §
1332(a); the action involves multiple plaintiffs and/or is a class action. The
pleadings do not state that at least one of the named plaintiffs has a claim

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:12-cv-01755-JHN-CWx

Date

Title

April 19, 2012

Anthony Jackson v. Metal Improvement Co. et al.

exceeding $75,000. Where the action does not implicate a common fund or
a joint interest, at least one of the named plaintiffs must meet the amount in
controversy requirement. Exxon Mobil Corp. v. Allapattah Servs., Inc., 125
S. Ct. 2611, 2615 (2005). Where injunctive relief is sought in a multiple
plaintiff action, the Ninth Circuit has held
that “the amount in controversy requirement cannot be satisfied [merely] by
showing that the fixed administrative costs of compliance exceed $75,000.”
In re Ford Motor Co./Citibank (S.D.), N.A. Cardholder Rebate Program
Litig., 264 F.3d 952, 961 (9th Cir. 2001).
[ ]

CV-90 (06/04)

Removal is on the basis of diversity jurisdiction in a class action pursuant to
28 U.S.C. § 1332(d). The complaint is deficient because:
[ ] the total claims of individual class members do not appear to exceed
$5,000,000 in
the aggregate. 28 U.S.C. § 1332(d)(2), (5).
[ ] the pleadings fail to allege that any member of a plaintiff class is a
citizen of a state
different from any defendant, that any member of a plaintiff class is a
citizen or subject of a foreign state and any defendant is a citizen of a
state, or that any member of a plaintiff class is a citizen of a state and
any defendant is a citizen or subject of a foreign state. 28 U.S.C. §
1332(d)(2).
[ ] it appears that two-thirds or more of the members of all proposed
plaintiff classes in
the aggregate are citizens of the state in which the action was
originally filed; the plaintiff class seeks significant relief from a
defendant who is a citizen of that state and whose alleged conduct
forms a significant basis for the claims; principal injuries were
incurred in that state; and no related class action has been filed within
the preceding three years. 28 U.S.C. § 1332(d)(4)(A).
[ ] it appears that two-thirds or more of the members of all proposed
plaintiff classes in
the aggregate and all of the primary defendants are citizens of the state
in which the action was originally filed. 28 U.S.C. § 1332(d)(4)(B).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:12-cv-01755-JHN-CWx

Date

Title

April 19, 2012

Anthony Jackson v. Metal Improvement Co. et al.

[ ] it appears that the primary defendants are states, state officials, or other
governmental
entities. 28 U.S.C. § 1332(d)(5)(A).
[ ] it appears that the total number of members of all proposed plaintiff
classes is less
than 100. 28 U.S.C. § 1332(d)(5)(B).
[ ] the action appears to involve solely securities claims or claims relating
to corporate
governance as described in 28 U.S.C. § 1332(d)(9).
[ ]

Removal is on the basis of diversity jurisdiction in a class action pursuant to
28 U.S.C. § 1332(d). The Court may decline to exercise its jurisdiction
pursuant to 28 U.S.C. § 1332(d)(3) because it appears that greater than onethird but less than two-thirds of the members of all plaintiff classes in the
aggregate and the primary defendants are citizens of California and one or
more of the following applies:
[ ] the claims asserted do not involve matters of national or interstate
interest. 28 U.S.C.
§ 1332(d)(3)(A).
[ ] the claims asserted will be governed by California law. 28 U.S.C. §
1332(d)(3)(B).
[ ] the class action has not been pleaded in a manner that seeks to avoid
federal
jurisdiction. 28 U.S.C. § 1332(d)(3)(C).
[ ] the forum in which the action was brought has a distinct nexus with the
class members, the alleged harm, or the defendants. 28 U.S.C. §
1332(d)(3)(D).
[ ] the number of California citizens among all plaintiff classes in the
aggregate is substantially larger than the number of citizens of any other
state, and the citizenship of the other members is dispersed among a
substantial number of states. 28 U.S.C. § 1332(d)(3)(E).
[ ] no related class action has been filed during the preceding three years.
28 U.S.C. § 1332(d)(3)(F).

[ ]

The Court notes the following potential procedural defect(s):

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:12-cv-01755-JHN-CWx

Date

Title

April 19, 2012

Anthony Jackson v. Metal Improvement Co. et al.

[ ] not all served defendants have joined in the notice of removal. See 28
U.S.C. § 1441(a); Parrino v. FHP, Inc., 146 F.3d 699, 703 (9th Cir. 1998).
[ ] the removing defendant(s) did not attach to the notice of removal a copy
of all process, pleadings, and orders served on the defendant(s). 28 U.S.C. §
1446(a).
[ ] the notice of removal was filed more than thirty days after the date of
service of the initial pleading or the date on which defendant first had notice
of removability. 28 U.S.C. § 1446(b).
[ ] removal is on the basis of diversity jurisdiction pursuant to 28 U.S.C. §
1332, the case was not initially removable, and the notice of removal was
filed more than one year after commencement of the action. 28 U.S.C. §
1446(b); Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1316 (9th Cir. 1998).
[ ] removal is on the basis of diversity jurisdiction pursuant to 28 U.S.C. §
1332(a), but some of the defendants are California citizens. 28 U.S.C. §
1441(b).
[ ]

Other:

Accordingly, the Court ORDERS defendants TO SHOW CAUSE, in writing, by no
later than May 7, 2012, why this action should not be remanded for the reason noted
above. This deadline shall not extend the time for responding to any motion for remand
filed by Plaintiff. Plaintiff may submit a response in the same time period. Plaintiff must
submit a response within 30 days of the date of removal if the defects are procedural and
plaintiff objects and requests remand. See 28 U.S.C. § 1447(c). The parties are reminded
that courtesy copies are to be delivered to Chambers. Failure of defendants to respond
by the above date will result in the Court remanding this action to state court.

IT IS SO ORDERED.
:
Initials of
Preparer
CV-90 (06/04)

CIVIL MINUTES - GENERAL

N/A

CSI

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