Anna Blount v. Colgate-Palmolive Company, et al

Filing 14

ORDER GRANTING PLAINTIFF'S EX PARTE MOTION TO REMAND AND FOR AN AWARD OF COSTS INCURRED by Judge Andre Birotte Jr.: The Court GRANTS Plaintiff's Ex Parte Motion to Remand 10 and REMANDS this case to Los Angeles Superior Court, Case No. BC 617806. This Court lacks subject-matter jurisdiction over the case because complete diversity does not exist between all parties to the action. Colgate-Palmolive Company is ORDERED to pay Plaintiff the reasonable costs and attorney's fees incurred in filing Plaintiff's Ex Parte Motion to Remand, in the amount of $5,700.00. ( MD JS-6. Case Terminated. ) (gk)

NOTE: CHANGES MADE BY THE COURT

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JS-6

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UNITED STATES DISTRICT COURT

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CENTAL DISTRICT OF CALIFORNIA

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A PROFESSIONAL CORPORATION
LAW OFFICES
1880 CENTURY PARK EAST, SUITE 700
LOS ANGELES, CALIFORNIA 90067

WEITZ & LUXENBERG P.C.

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ANNA BLOUNT, an individual;

CASE NO. 2:16-cv-08048-AB (KS)

Plaintiff,

[PROPOSED] ORDER GRANTING
v.
PLAINTIFF’S EX PARTE MOTION
TO REMAND AND FOR AN AWARD
COLGATE-PALMOLIVE COMPANY, OF COSTS INCURRED
et al.

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Defendants.

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Complaint Filed:
Trial Date:

April 20, 2016
None Set

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Having considered Plaintiff’s Ex Parte Motion to Remand And For An

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Award of Costs Incurred, and the Opposition of Defendant Colgate-Palmolive

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Company, the Court GRANTS the Application and REMANDS this case as

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follows:
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(1) Ex parte relief is justified based on the failing health of Plaintiff Anna
Blount. There is “a threat of immediate or irreparable injury” if this matter is not

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heard on ex parte basis. If Blount passes away before trial, any recovery of

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damages for his pain and suffering will be precluded by California law, resulting in
the loss of a significant and important remedial right. Cal. Code. Civ. Proc. §
377.34; see also County of Los Angeles v. Superior Court, 21 Cal.App.4th 292,

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295-96 (1999).
(2) Plaintiff Anna Blount’s Ex Parte Motion to Remand is GRANTED, and
this action is hereby remanded to the Los Angeles Superior Court. This Court

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lacks subject-matter jurisdiction over the case because complete diversity does not

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exist between all parties to the action. Although it appears that Plaintiff and the

A PROFESSIONAL CORPORATION
LAW OFFICES
1880 CENTURY PARK EAST, SUITE 700
LOS ANGELES, CALIFORNIA 90067

WEITZ & LUXENBERG P.C.

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only remaining non-diverse defendant, Kelly-Moore Paint Company, Inc. (“Kelly-

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Moore”), are in the process of settling, Kelly-Moore has not been dismissed and no

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judgment has been entered releasing Kelly-Moore from this action. Under

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California law, a settlement is enforceable and a judgment may be entered if the

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parties file a signed writing for settlement of the case, or personally appear before

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the court and agree orally to the terms of the settlement. See Cal. Code Civ. Proc.

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§ 664.6. This has not happened with respect to Plaintiff’s claims against Kelly-

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Moore, so Kelly-Moore remains in the case and its California citizenship must be

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considered for purposes of diversity jurisdiction. This is not a case in which

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Plaintiff had evidently abandoned her claims against a defendant by, for example,
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failing to serve the defendant with process, nor is the non-diverse defendant a

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sham. And, Plaintiff’s counsel’s statement at the pre-trial conference to the effect

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that Plaintiff will not be proceeding against Kelly-Moore at trial is not conclusive

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because it clearly depended on the settlement actually being completely
consummated; should the settlement fall apart, Plaintiff could still presumably
pursue her claims against Kelly-Moore. The Court has reviewed the cases

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Defendant cites against remand, and none of them are persuasive: none of the

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California cases deal with an analogous situation, and the cases dealing with law

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other than California law (the majority of Defendant’s cases) are irrelevant. By

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contrast, the Court is persuaded by the well-articulated reasoning in Tyler v. Am.

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Optical Corp., No. LACV1602337JAKASX, 2016 WL 1383459 (C.D. Cal. Apr. 7,

A PROFESSIONAL CORPORATION
LAW OFFICES
1880 CENTURY PARK EAST, SUITE 700
LOS ANGELES, CALIFORNIA 90067

WEITZ & LUXENBERG P.C.

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2016), a case on all fours with the present case, that Plaintiff’s pending settlement

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with Kelly-Moore does not trigger complete diversity.
(3) The Court also finds that Defendant’s removal was unjustified and
appears to have been part of a litigation strategy to delay Plaintiff’s imminent trial.

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The Court finds that the fourteen (14) hours Plaintiff’s counsel spent preparing the

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remand motion was reasonable, and that counsels’ hourly rates of $450 and $350,

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respectively, for a total of $5,700, are also reasonable. Colgate-Palmolive

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Company is therefore ORDERED to pay Plaintiff the reasonable costs and

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attorney’s fees incurred in filing Plaintiff’s Ex Parte Motion to Remand, in the

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amount of $5,700.00.
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IT IS SO ORDERED.
Dated: November 1, 2016

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cc: Fiscal

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____________________________
Hon. André Birotte Jr.