Daniel Dismukes v. Massachusetts Mutual Life Insurance Company et al

Filing 11

(IN CHAMBERS) ORDER TO SHOW CAUSE RE: REMAND by Judge Fernando M. Olguin. Response to Order to Show Cause due by 4/24/2013. (vdr)

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

CV 13-2183 FMO (FFMx)

Title

Daniel Dismukes v. Massachusetts Mutual Life Insurance Company, et al.

Present: The Honorable

Date

April 10, 2013

Fernando M. Olguin, United States District Judge

Vanessa Figueroa

None

None

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorney Present for Plaintiff(s):

Attorney Present for Defendant(s):

None Present

None Present

Proceedings:
(In Chambers) Order to Show Cause Re: Remand
On March 27, 2013, 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(s) opposite the
box(es) 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.

[ ]

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 Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 553, 125 S.Ct. 2611, 2617 (2005) (“In a case
with multiple plaintiffs and multiple defendants, the presence in the action of a single
plaintiff from the same State as a single defendant deprives the district court of
original diversity jurisdiction[.]”); Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267
(1806) (all parties in a suit must be entitled to sue or be sued in federal court).

[ ]

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.

[ ]

Jurisdiction is asserted on the basis of diversity jurisdiction pursuant to 28 U.S.C.
§ 1332, but the pleadings fail to allege the citizenship of some or all of the:
[ ]
plaintiff(s).
[ ]
defendant(s).

[ ]

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

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

CV 13-2183 FMO (FFMx)

Date

April 10, 2013

Title

Daniel Dismukes v. Massachusetts Mutual Life Insurance Company, et al.
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. See Grupo Dataflux v. Atlas Global Grp., L.P.,
541 U.S. 567, 569, 124 S.Ct. 1920, 1923 (2004) (“[A] partnership . . . is a citizen of
each State or foreign country of which any of its partners is a citizen.”); Carden v.
Arkoma Assocs., 494 U.S. 185, 195, 110 S.Ct. 1015, 1021 (1990) (diversity
jurisdiction depends on the citizenship of all members of an artificial entity); Johnson
v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006) (“[A]n
unincorporated association such as a partnership has the citizenships of all of its
members.”).
[ ]

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 complaint is the corporate party’s principal place of
business. For diversity purposes, the principal place of business is “the place where
a corporation’s officers direct, control, and coordinate the corporation’s activities.”
Hertz Corp. v. Friend, 559 U.S. 77, 130 S.Ct. 1181, 1192 (2010); see also Harris v.
Rand, 682 F.3d 846, 851 (9th Cir. 2012) (if allegations of a corporation’s principal
place of business are implausible or the court has doubts about whether diversity
exists, it may request additional allegations of the principal place of business).

[ ]

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 to be not 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 both at the time the action was
commenced and at the time of removal. See Strotek Corp. v. Air Transp. Ass’n of
Am., 300 F.3d 1129, 1131-32 (9th Cir. 2002) (“[Diversity] is determined (and must
exist) as of the time the complaint is filed and removal is effected.”).

[X ]

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 that plaintiff seeks is unclear from the complaint, or appears to
be $75,000 or less, defendants bear the burden of proving by a preponderance of
the evidence that the amount in controversy meets that jurisdictional threshold.

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

CV 13-2183 FMO (FFMx)

Date

April 10, 2013

Title

Daniel Dismukes v. Massachusetts Mutual Life Insurance Company, et al.
Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). Defendants must
show that it is more likely than not that the amount in controversy exceeds $75,000.
Id. An allegation based on “information and belief” does not meet the
preponderance of the evidence standard. Id.; see also Matheson v. Progressive
Specialty Ins. Co., 319 F.3d 1089, 1090-91 (9th Cir. 2003) (“Conclusory allegations
as to the amount in controversy are insufficient.”).
[ ]

Removal is on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332(a) and
the action involves multiple plaintiffs and/or is a class action. But the pleadings do
not state that at least one of the named plaintiffs has a claim 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. See
Exxon, 545 U.S. at 559, 125 S.Ct. at 2621 (a district court that has jurisdiction over
a single claim in a complaint has jurisdiction over the entire action). Where
injunctive relief is sought in a multiple plaintiff action, the Ninth Circuit has held that
“the amount in controversy requirement cannot be satisfied 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),
cert. granted, 534 U.S. 1126 (2002), cert. dismissed, 537 U.S. 1 (2002).

[ ]

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).
[ ]
the pleadings fail to allege that: any member of a plaintiff class is a citizen of
a state different from any defendant; 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 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).
[ ]
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

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

CV 13-2183 FMO (FFMx)

Title

Daniel Dismukes v. Massachusetts Mutual Life Insurance Company, et al.

[ ]

[ ]

[ ]
[ ]
[ ]
[ ]

[ ]

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).

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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April 10, 2013

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 one-third 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:
[ ]

[ ]

Date

not all served defendants have joined in the notice of removal. See 28
U.S.C. § 1441(a); Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 680 (9th
Cir. 2006) (“[A]ll defendants must agree to removal[.]”).
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(c); see
Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1316 (9th Cir.), cert. denied, 525
U.S. 963 (1998) (the one-year exception applies to cases that only become
removable after the initial commencement of the action).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 13-2183 FMO (FFMx)

Title

Daniel Dismukes v. Massachusetts Mutual Life Insurance Company, et al.
[ ]

[ ]

Date

April 10, 2013

removal is on the basis of diversity jurisdiction pursuant to 28 U.S.C. §
1332(a), but some defendants are California citizens. 28 U.S.C. § 1441(b).

Other:

Accordingly, IT IS ORDERED that:
1. No later than Wednesday, April 24, 2013, defendant(s) shall show cause in writing why
this action should not be remanded for the reasons noted above. This deadline shall not extend
the time for responding to any motion for remand filed by plaintiff(s). Plaintiff(s) may submit a
response in the same time period. If plaintiff(s) wish to move for remand based on this procedural
defect, plaintiff(s) must file a regularly noticed motion for remand no later than Thursday, April
25, 2013. See 28 U.S.C. § 1447(c) (“A motion to remand the case on the basis of any defect other
than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice
of removal”).
2. A copy of all papers filed with the court shall be delivered to the drop box outside
chambers at Suite 520, Spring Street Courthouse, 312 North Spring Street, no later than 12:00
noon the following business day. All chambers copies shall comply fully with the document
formatting requirements of Local Rule 11-3, including the “backing” requirements of Local Rule
11-3.5. Counsel may be subject to sanctions for failure to deliver a mandatory chambers copy in
full compliance with this Order and Local Rule 11-3.

00
Initials of Preparer

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:

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VDR

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