Connie Kim et al v. Breakers VC, LLC

Filing 7

MINUTES (IN CHAMBERS) ORDER REMANDING ACTION by Judge Fernando M. Olguin. The above-captioned action shall be remanded to the Superior Court of the State of California for the County of Los Angeles, 111 N. Hill Street, Los Angeles, CA 90012, for lack of subject matter jurisdiction pursuant to 28 U.S.C. 1447(c). Case Terminated. Made JS-6 (iv)

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

CV 21-4566 FMO (JCx)

Title

Connie Kim, et al. v. Breakers VC, LLC, et al.

Present: The Honorable

Date

July 14, 2021

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 Remanding Action

On June 30, 2020, plaintiffs Connie Kim and 9292 BBQ Café (collectively, “plaintiffs”) filed
a Complaint in the Los Angeles County Superior Court against Breakers VC, LLC (“BVC”), Breaker
Duluth, LLC (“BDL”), Bobby Kim (“BK”), and Jae Kook Kim (“JKK”) (collectively, “defendants”),
asserting claims for: (1) fraud and misrepresentation; (2) breach of contract; (3) tortious
interference with business; (4) intentional infliction of emotional distress; (5) breach of implied
covenant of good faith and fair dealing; (6) preliminary and permanent injunction; and (7) unjust
enrichment. (See Dkt. 1, Notice of Removal (“NOR”) at ¶ 1); (Dkt. 1-1, Complaint at ¶¶ 6-35). On
June 3, 2021, BDL and BK (the “removing defendants”) removed the action on diversity jurisdiction
grounds pursuant to 28 U.S.C. §§ 1332 and 1441. (See Dkt. 1, NOR at p. 3). Having reviewed
the pleadings, the court hereby remands this action to state court for lack of subject matter
jurisdiction. See 28 U.S.C. § 1447(c).
In general, “any civil action brought in a State court of which the district courts of the United
States have original jurisdiction, may be removed by the defendant or the defendants, to the
district court[.]” 28 U.S.C. § 1441(a). A removing defendant bears the burden of establishing that
removal is proper. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam) (“The
strong presumption against removal jurisdiction means that the defendant always has the burden
of establishing that removal is proper.”) (internal quotation marks omitted); Abrego Abrego v. The
Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (per curiam) (noting the “longstanding, nearcanonical rule that the burden on removal rests with the removing defendant”). If there is any
doubt regarding the existence of subject matter jurisdiction, the court must resolve those doubts
in favor of remanding the action to state court.1 See Gaus, 980 F.2d at 566 (“Federal jurisdiction
must be rejected if there is any doubt as to the right of removal in the first instance.”). Indeed, “[i]f
at any time before final judgment it appears that the district court lacks subject matter jurisdiction,

1

An “antiremoval presumption” does not exist in cases removed pursuant to the Class
Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). See Dart Cherokee Basin Operating Co., LLC
v. Owens, 574 U.S. 81, 89, 135 S.Ct. 547, 554 (2014). BDL and BK do not seek to remove
pursuant to CAFA. (See, generally, Dkt. 1, NOR).
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CIVIL MINUTES - GENERAL

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

CV 21-4566 FMO (JCx)

Title

Date

Connie Kim, et al. v. Breakers VC, LLC, et al.

July 14, 2021

the case shall be remanded.” 28 U.S.C. § 1447(c); see Kelton Arms Condo. Owners Ass’n, Inc.
v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003) (“Subject matter jurisdiction may not
be waived, and, indeed, we have held that the district court must remand if it lacks jurisdiction.”);
Washington v. United Parcel Serv., Inc., 2009 WL 1519894, *1 (C.D. Cal. 2009) (a district court
may remand an action where the court finds that it lacks subject matter jurisdiction “either by
motion or sua sponte”).
The court’s review of the NOR and the attached state court Complaint makes clear that this
court does not have subject matter jurisdiction over the instant matter. In other words, plaintiff
could not have originally brought this action in federal court, as plaintiff does not competently
allege facts supplying diversity jurisdiction.2 Therefore, removal was improper. See 28 U.S.C. §
1441(a); Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429 (1987) (“Only
state-court actions that originally could have been filed in federal court may be removed to federal
court by the defendant.”).
When federal subject matter jurisdiction is predicated on diversity of citizenship, see 28
U.S.C. § 1332(a), complete diversity must exist between the opposing parties, see Caterpillar Inc.
v. Lewis, 519 U.S. 61, 68, 117 S.Ct. 467, 472 (1996) (stating that the diversity jurisdiction statute
“applies only to cases in which the citizenship of each plaintiff is diverse from the citizenship of
each defendant”), and the amount in controversy must exceed $75,000. See 28 U.S.C. §
1332(a).3 There is no basis for diversity jurisdiction in this case because complete diversity of the
parties has not been shown. See id.
Here, both plaintiffs appear to be citizens of California. (See Dkt. 1, NOR at ¶ 10). The
removing defendants, BDL and BK, are both citizens of Georgia. (See id. at ¶¶ 12-13). According
to the NOR, defendant JKK is a citizen of Washington. (See id. at ¶ 4). However, the removing
defendants nowhere assert the citizenship of defendant BVC. (See, generally, id.). The only
reference in the entire NOR to BVC’s citizenship is in the caption page where BVC is identified as
“a California limited liability company[.]”4 (Id. at p. 1). Indeed, the removing defendants contend
only that “diversity of citizenship exists between plaintiffs and three [ ] out of four [ ] named
defendants.” (Id. at p. 3) (formatting omitted). This contention and the reference to BVC as a

2

BDL and BK seek only to invoke the court’s diversity jurisdiction. (See, generally, Dkt.
1, NOR).
3

In relevant part, 28 U.S.C. § 1332(a) provides that a district court has diversity jurisdiction
“where the matter in controversy exceeds the sum or value of $75,000, . . . and is between . . .
citizens of different States” or “citizens of a State and citizens or subjects of a foreign state[.]” 28
U.S.C. §§ 1332(a)(1)-(2).
4

There is no such identification in the state court Complaint. (See, generally, Dkt. 1-1,
Complaint).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 21-4566 FMO (JCx)

Date

Title

Connie Kim, et al. v. Breakers VC, LLC, et al.

July 14, 2021

California limited liability company in the NOR’s caption both suggest that BVC – a defendant who
has been served, (see Dkt. 1, NOR at ¶ 2) – is a California citizen, which would destroy complete
diversity and additionally preclude removal under 28 U.S.C. § 1441(b)(2). See, e.g., Spencer v.
United States Dist. Court, 393 F.3d 867, 870 (9th Cir. 2004) (“It is thus clear that the presence of
a local defendant at the time removal is sought bars removal.”). Further, there is no allegation in
the Complaint which suggests BVC is diverse from plaintiffs either. (See, generally, Dkt. 1-1,
Complaint). In short, BDL and BK have failed to establish that BVC is a diverse defendant. See
Hansen v. Grp. Health Cooperative, 902 F.3d 1051, 1057 (9th Cir. 2018) (“The removing
defendant bears the burden of overcoming the strong presumption against removal jurisdiction.”)
(internal quotation marks omitted).
In sum, given that any doubt regarding the existence of subject matter jurisdiction must be
resolved in favor of remanding the action, see Gaus, 980 F.2d at 566 (“Federal jurisdiction must
be rejected if there is any doubt as to the right of removal in the first instance.”), the court is not
persuaded, under the circumstances here, that BDL and BK have met their burden of showing that
complete diversity of the parties exists. Accordingly, there is no basis for diversity jurisdiction, and
the court lacks subject matter jurisdiction over this matter.
This order is not intended for publication. Nor is it intended to be included in or
submitted to any online service such as Westlaw or Lexis.
Based on the foregoing, IT IS ORDERED that:
1. The above-captioned action shall be remanded to the Superior Court of the State of
California for the County of Los Angeles, 111 N. Hill Street, Los Angeles, CA 90012, for lack of
subject matter jurisdiction pursuant to 28 U.S.C. § 1447(c).
2. The Clerk shall send a certified copy of this Order to the state court.

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