Jesus M. Torres v. Ford Motor Company et al

Filing 16

MINUTES (IN CHAMBERS) by Judge Andre Birotte Jr: DENYING #10 MOTION to Remand Case to State Court. See order for details. (shb)

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

CV 18-08956 AB (FFMx)

Date:

January 4, 2019

Jesus M. Torres v. Ford Motor Company et al.

Present: The Honorable

ANDRÉ BIROTTE JR., United States District Judge

Carla Badirian
Deputy Clerk

N/A
Court Reporter

Attorney(s) Present for Plaintiff(s):

Attorney(s) Present for Defendant(s):

None Appearing

None Appearing

Proceedings:

[In Chambers] ORDER DENYING MOTION FOR REMAND

Before the Court is Plaintiff Jesus Torres’s (“Plaintiff”) Motion for Remand
(“Motion,” Dkt. No. 10). Defendant Ford Motor Company (“Defendant”) filed an
opposition. Plaintiff did not file a reply. The Court will resolve the Motion without oral
argument and VACATES the January 11, 2019, hearing. The Motion is DENIED.
DISCUSSION
On February 11, 2016, Plaintiff filed this action in state court, asserting state law
claims against Defendant. On October 17, 2018, Defendant removed the action under 28
U.S.C. § 1446(b)(3) on the ground that Plaintiff’s October 10 proposed jury instructions
triggered federal question jurisdiction by referring to a claim under the Magnuson-Moss
Act, 15 U.S.C. § 2301, et seq.. Plaintiff contends that federal question jurisdiction does
not exist because his reference to the federal act was just an error and that he never
asserted, or intended to assert, any federal claim in this suit.
The Court need not resolve whether Plaintiff’s (inadvertent) reference to a federal
claim in his proposed jury instructions confers subject matter jurisdiction because the
CV-90 (12/02)

CIVIL MINUTES - GENERAL

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Initials of Deputy Clerk CB

Notice of Removal properly invokes the Court’s diversity jurisdiction. Plaintiff’s Motion
for Remand does not dispute that diversity jurisdiction exists, and for the reasons stated
in Defendant’s Notice of Removal and opposition, diversity jurisdiction does exist.
Defendant removed this case more than 1 year after it was filed, so Defendant’s
invocation of diversity jurisdiction is untimely. See 28 U.S.C. § 1446(c)(1) (“A case may
not be removed under [§] (b)(3) on the basis of [diversity jurisdiction] more than 1 year
after the commencement of the action . . .”). However, untimeliness is a merely
procedural defect, so it is waivable. Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212
(9th Cir. 1980) (time limit is procedural, not jurisdictional, so “a party may waive the
defect or be estopped from objecting to the untimeliness by sitting on his rights.”) Here,
Plaintiff does not raise a timeliness objection, and such an objection would itself be
untimely since Plaintiff filed his motion for remand more than 30 days after Defendant
removed the case. See 28 U.S.C. § 1447(c) (motion for remand on any ground other than
lack of subject matter jurisdiction must be made within 30 days of removal).
Accordingly, Plaintiff has waived any timeliness objection.
Because Defendant’s Notice of Removal properly invokes the Court’s diversity
jurisdiction, and because Plaintiff waived any objection to the untimeliness of that
removal, Plaintiff’s Motion for Remand is DENIED.
IT IS SO ORDERED.

CV-90 (12/02)

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Initials of Deputy Clerk CB