Benchmark Insurance Company et al v. United Rentals North America Inc et al

Filing 19

MINUTES OF IN CHAMBERS - ORDER RE PLAINTIFF'S MOTION TO REMAND by Judge Dolly M. Gee: Because section 1445(c) bars the removal of Plaintiff Benchmark Insurance Company's state court complaint seeking reimbursement under California Labor Cod e section 3852, the Court GRANTS Benchmark's Motion to Remand 11 The clerk shall REMAND this case to the Los Angeles County Superior Court, Case No. BC595461. The 12/9/2016 hearing on this matter is VACATED. ( MD JS-6. Case Terminated. ) Court Reporter: Not Reported. (gk)

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

JS-6 / REMAND

Date

CV 16-7860-DMG (PJWx)

December 8, 2016

Title Benchmark Insurance Company v. United Rentals North America
Inc., et al.
Present: The Honorable

Page

1 of 2

DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

KANE TIEN
Deputy Clerk

NOT REPORTED
Court Reporter

Attorneys Present for Plaintiff(s)
None Present

Attorneys Present for Defendant(s)
None Present

Proceedings: IN CHAMBERS - ORDER RE PLAINTIFF’S MOTION TO REMAND [11]
Plaintiff Benchmark Insurance Company moves to remand this case based on 28 U.S.C. §
1445(c). [Doc. # 11.]
Under 28 U.S.C. § 1445(c), “[a] civil action in any State court arising under the
workmen’s compensation laws of such State may not be removed to any district court of the
United States.” California Labor Code section 3852 creates a subrogation cause of action for
entities who pay workers’ compensation benefits. It allows entities obligated to pay workers’
compensation benefits to bring a claim against a tortious third party in order to recover those
benefits.
Here, the parties do not dispute that Benchmark’s state court complaint against
Defendants United Rentals (North America), Inc. and Manitou Americas, Inc. seeks
reimbursement for workers’ compensation benefits under section 3852. See Doc. # 1-1
(summons and complaint), 1-2 (First Amended Complaint). Rather, the issue raised by Manitou
in its opposition to the remand motion is whether or not Benchmark waived the procedural bar
under 28 U.S.C. § 1445(c) when it sought to intervene in a prior federal action brought by
injured employee Jose Luis Lomeli. See Lomeli v. United Rentals (North America) Inc., et al.,
No. CV 15-4346 DMG (PJWx) (the “Lomeli Action”).
Indeed, section 1445(c) is a waivable procedural bar. Vasquez v. N. Cty. Transit Dist.,
292 F.3d 1049, 1062 (9th Cir. 2002) (“Even if § 1445(c) otherwise applies here, its bar against
removal of workers’ compensation claims is nonjurisdictional and may be waived.”). For
instance, a party’s failure to timely object to federal jurisdiction can be deemed a waiver to the
right to remand. Id. According to Manitou’s opposition, Benchmark waived the procedural bar
when it “availed itself of the jurisdiction of the federal court by intervening in [the Lomeli
Action]” and participating in discovery, depositions, and the mediation. Opp. at 9 [Doc. # 17].

CV-90

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

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

CV 16-7860-DMG (PJWx)

JS-6 / REMAND

Date

December 8, 2016

Title Benchmark Insurance Company v. United Rentals North America
Inc., et al.

Page

2 of 2

Benchmark made no such waiver in this case. Under Federal Rule of Civil Procedure
24(c), a motion to intervene “must state the grounds for intervention and be accompanied by a
pleading that sets out the claim or defense for which intervention is sought.” While Benchmark
did seek leave to intervene in the Lomeli Action, it never filed a Complaint-in-Intervention or
any other complaint in federal court. See Declaration of Kevin R. Spaulding (“Spaulding Decl.”)
¶¶ 8-9, 32 [Doc. ## 11-3, 18-1]. By failing to do so as required under Rule 24, it failed to perfect
its intervention in the Lomeli Action. Having never properly intervened in the federal action,
Benchmark did not effectuate a waiver of section 1445(c)’s procedural bar.1
Accordingly, because section 1445(c) bars the removal of Benchmark’s state court
complaint seeking reimbursement under California Labor Code section 3852, the Court
GRANTS Benchmark’s motion to remand. The clerk shall REMAND this case to the Los
Angeles County Superior Court.
The December 9, 2016 hearing on this matter is VACATED.
IT IS SO ORDERED.

1

Notwithstanding Manitou’s representations, Benchmark never provided initial discovery disclosures in
accordance with Federal Rule of Civil Procedure 26(a)(1) and was never requested by a party do so. Spaulding
Decl. ¶ 34.
CV-90

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT