Jose Herrera v. XPO Cartage, Inc.

Filing 20

ORDER GRANTING PLAINTIFF JOSE HERRERA'S MOTION TO REMAND by Judge Manuel L. Real: IT IS HEREBY ORDERED that Plaintiff's Motion to Remand 11 is GRANTED. The instant action is hereby REMANDED to the Superior Court of the State of California for the County of Los Angeles--Long Beach, Case No. NS033715. ( MD JS-6. Case Terminated. ) (gk)

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1 JS-6 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 JOSE HERRERA, 13 Plaintiff, 14 v. 15 16 XPO CARTAGE, INC., Defendant. 17 ) CASE NO. CV 17-3912-R ) ) ORDER GRANTING PLAINTIFF JOSE ) HERRERA’S MOTION TO REMAND ) ) ) ) ) ) 18 19 Before the Court is Plaintiff Jose Herrera’s (“Herrera”) Motion to Remand, which was 20 filed on June 22, 2017. (Dkt. No. 11). Having been briefed by both parties, this Court took the 21 matter under submission on August 2, 2017. 22 “The burden of establishing federal subject matter jurisdiction falls on the party invoking 23 removal.” Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 944 (9th Cir. 24 2009) (citing Toumajian v. Frailey, 135 F.3d 648, 652 (9th Cir. 1998)). There is a “strong 25 presumption against removal jurisdiction,” and courts must reject it “if there is any doubt as to the 26 right of removal in the first instance.” Geographic Expeditions, Inc., v. Estate of Lhotka ex rel. 27 Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010). 28 /// Herrera seeks to remand the instant matter on the grounds that Defendant XPO Cartage, 1 2 Inc. (“XPO”) should be considered the “plaintiff” for the purpose of determining whether removal 3 was proper under Title 28 U.S.C. §1441. Section 1441(a) provides that, “[e]xcept as otherwise 4 expressly provided by Act of Congress, any civil action brought in a State court of which the 5 district courts of the United States have original jurisdiction, may be removed by defendant or the 6 defendants, to the district court of the United States for the district and division embracing the 7 place where such action is pending.” 28 U.S.C. § 1441(a) (emphasis added). Under the plain 8 language of Section 1441(a), “[t]he right to remove a state court case to federal court is clearly 9 limited to defendants.” Am. Int’l Underwriters (Philippines), Inc. v. Continental Ins. Co., 843 10 F.2d 1253, 1260 (9th Cir. 1988). 11 Here, while XPO is labeled the “Defendant” in the instant litigation, it initiated these 12 proceedings in state court. As such, the Court deems XPO the “Plaintiff’ for purposes of removal. 13 The purpose of Section 1441(a) is to allow a party who is involuntarily summoned into the 14 jurisdiction of the state court the ability to remove to federal court if there is a basis for federal 15 jurisdiction. Oppenheimer & Co., Inc. v. Neidhardt, 56 F.3d 352, 356 (2d Cir. 1995). That 16 purpose would not be advanced here—XPO was not involuntarily summoned into the jurisdiction 17 of the state court, it chose to file in state court. As XPO itself concedes, California Labor Code 18 section 98.2 does not divest this Court of jurisdiction over this case. In fact, the Ninth Circuit has 19 held that “district courts have diversity jurisdiction over appeals from state administrative agency 20 decisions when state law places such appeals in state trial courts, and, of course, when the familiar 21 citizenship and amount in controversy requirements are fulfilled.” BNSF Ry. Co. v. O’Dea, 572 22 F.3d 785, 791 (9th Cir. 2009) (Fisher, J., concurring). Because XPO, by its own affirmative and 23 voluntary act, chose to initially file the instant suit in state court, it should be bound by its choice 24 of forum. Victorias Milling Co. v. Hugo Neu Corp., 196 F. Supp. 64, 68 (S.D.N.Y. 1961). For the reasons stated above, the Court GRANTS Herrera’s Motion. 25 26 /// 27 /// 28 /// 2 1 IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand is GRANTED. (Dkt. No. 2 11). The instant action is hereby REMANDED to the Superior Court of the State of California for 3 the County of Los Angeles—Long Beach. 4 Dated: August 28, 2017. 5 6 7 8 ___________________________________ MANUEL L. REAL UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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