Kayla Jones v. KLLM Transport Services, LLC et al
MINUTES (IN CHAMBERS ) by Judge Jesus G. Bernal: (1) GRANTING Plaintiff Kayla Joness Motion to Remand (Dkt. No. 14 ); (2) AWARDING Plaintiff $1,800 in Attorneys Fees; and (3) VACATING the October 21, 2019 Hearing. The Court AWARDS $1,800 in attorneys' fees to Plaintiff. Case Remanded to San Bernardino Superior Court, CIVDS1920555. MD JS-6. Case Terminated. (twdb)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
EDCV 19-1617 JGB (SHKx)
Date October 10, 2019
Title Kayla Jones v. KLLM Transport Services, LLC, et al.
Present: The Honorable
JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE
Attorney(s) Present for Plaintiff(s):
Attorney(s) Present for Defendant(s):
Order (1) GRANTING Plaintiff Kayla Jones’s Motion to Remand (Dkt.
No. 14); (2) AWARDING Plaintiff $1,800 in Attorneys’ Fees; and (3)
VACATING the October 21, 2019 Hearing (IN CHAMBERS)
Before the Court is Plaintiff Kayla Jones’s Motion to Remand. (“Motion,” Dkt. No. 14.)
The Court finds this matter appropriate for resolution without a hearing. See Fed. R. Civ. P. 78;
L.R. 7-15. After consideration of the papers filed in support of, and in opposition to the Motion,
the Court GRANTS the Motion and AWARDS Plaintiff $1,800 in attorneys’ fees. The hearing
scheduled for October 21, 2019 is VACATED.
On April 30, 2019, Plaintiff Kayla Jones (“Plaintiff”) filed her complaint against
Defendants KLLM Transport Services, LLC (“KLLM”), Gregory Bell (“Bell”) (collectively,
“Defendants”), and Does 1–50 and in the Superior Court for the County of San Bernardino.
(“Complaint,” Dkt. No. 1-1.) The Complaint alleges personal injury claims arising out of a
vehicle collision. (Id.) Plaintiff served KLLM on July 19, 2019. (Dkt. No. 14 at 13.) Plaintiff has
not yet served Gregory Bell. (Id. at 10.)
Defendants removed the action to this Court on August 23, 2019. (“Notice of Removal,”
Dkt. No. 1.) Defendants assert diversity jurisdiction. (Id.) Plaintiff filed the Motion on
September 17, 2019. (Motion.) In support of the Motion, Plaintiff filed the Declaration of Anna
You with Exhibits A–C. (“You Declaration,” Dkt. No. 14 at 9–26.) Defendants opposed the
Motion on September 26, 2019. (“Opposition,” Dkt. No. 16.) In support of the Opposition,
Defendants filed the Declaration of Matthew J. Kracht with Exhibits A–C. (“Kracht
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Declaration,” Dkt. No. 16-1.) Plaintiff filed her reply on October 4, 2019 with a second
Declaration of Anna You. (“Reply,” Dkt. No. 17; “You Reply Declaration,” Dkt. No. 17-1.)
Pursuant to 28 U.S.C. § 1441(a), a defendant may remove a matter to federal court where
the district court would have original jurisdiction. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392
(1987). Federal courts have limited jurisdiction, “possessing only that power authorized by
Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013). As such, a Defendant
may remove civil actions in which a federal question exists or in which complete diversity of
citizenship between the parties exists and the amount in controversy exceeds $75,000. See 28
U.S.C. §§ 1331, 1332. “Complete diversity” means that “each defendant must be a citizen of a
different state from each plaintiff.” In re Digimarc Corp. Derivative Litigation, 549 F.3d 1223,
1234 (9th Cir. 2008).
The right to remove is not absolute, even where original jurisdiction exists. A defendant
may not remove on diversity jurisdiction grounds “if any of the parties in interest properly joined
and served as defendants is a citizen of the State in which such an action is brought.” 28 U.S.C.
§ 1441(b)(2). And a defendant must remove “within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial pleading.” 28 U.S.C. § 1446(b).
Moreover, the Ninth Circuit “strictly construe[s] the removal statute against removal
jurisdiction,” and “[f]ederal jurisdiction must be rejected if there is any doubt as to the right of
removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). “The
strong presumption against removal jurisdiction means that the defendant always has the burden
of establishing that removal is proper.” Jackson v. Specialized Loan Servicing, LLC, 2014 WL
5514142, *6 (C.D. Cal. Oct. 31, 2014). The court must resolve doubts regarding removability in
favor of remanding the case to state court. Id.
Plaintiff seeks remand, arguing the Notice of Removal is deficient. First, she argues the
Notice of Removal is untimely because it was filed more than thirty days after Plaintiff served
KLLM. (Motion at 3–4.) Second, she argues that the Notice of Removal fails to allege diversity
of citizenship because it makes “no allegation regarding Plaintiff’s citizenship” and alleges “only
that Bell is ‘a resident of Texas.’” (Motion at 5; Notice of Removal at 2.) And third, she argues
that the Notice of Removal fails to establish the requisite $75,000 in controversy, stating only
that the amount “exceeds $25,000.” (Motion at 4; Notice of Removal at 2.)
The Court agrees—the Notice of Removal is wholly deficient. It is Defendants’ burden
to file a notice with “a plausible allegation” that diversity of citizenship exists and “that the
amount in controversy exceeds the jurisdictional threshold.” See Dart Cherokee Basin
Operating Co., LLC v. Owens, 135 S. Ct. 547, 554 (2014). And a notice that neither alleges the
plaintiff’s citizenship nor makes even a conclusory statement that there is more than $75,000 in
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controversy fails to make a plausible allegation that the Court has original jurisdiction. Although
Defendants attempt to establish in the Opposition that the amount in controversy is over
$75,000, they make no allegations regarding Plaintiff’s citizenship. (See Opposition at 3–5.) It is
Defendant’s burden to establish diversity of citizenship, and without information regarding
Plaintiff’s citizenship, it is impossible for Court to conclude that diversity of citizenship exists.1
That alone is reason to remand.
Moreover, removal of this action is improper pursuant to the Forum Defendant Rule,
which limits removal based on diversity where one of the defendants “properly joint and served”
is a citizen of the state in which the action was originally filed. See 28 U.S.C. § 1441(b)(2).
Because “[r]emoval based on diversity jurisdiction is intended to protect out-of-state defendants
from possible prejudices in state court” there is no need for it “in cases where the defendant is a
citizen of the state in which the case is brought.” Lively v. Wild Oats Markets, Inc., 456 F.3d
933, 940 (9th Cir. 2006).
Plaintiff alleges that Bell is a citizen of California, the state where the action was originally
filed. (Motion at 5–6.) Defendants do not dispute Bell’s citizenship but argue that the Forum
Defendant Rule should not apply because “Plaintiff had not yet served Mr. Bell when [Bell]
removed this case to federal court.” (Opposition at 4.) Defendants rely on Zirkin v. Shandy
Media, Inc., in which Judge Otis Wright of the Central District held that the plain language of §
1441(b)(2), namely “properly joined and served,” precludes application of the Forum Defendant
Rule where a defendant removes the case before he is served. See 2019 WL 626138, at *2 (C.D.
Cal. Feb. 14, 2019). But other lower courts—including other courts in the Central District—
have held that “such a reading” of the statute “would ‘eviscerate the purpose of the Forum
Defendant Rule.’” Massachusetts Mut. Life Ins. Co. v. Mozilo, 2012 WL 11047336, at *2 (C.D.
Cal. June 28, 2012) (quoting Sullivan v. Novartis Pharmastein AG, 575 F. Supp. 2d 640, 645
(D.N.J. 2008)); see also Khashan v. Ghasemi, 2010 WL 1444884, at *2 (C.D. Cal. Apr. 5, 2010)
(The “‘properly joined and served’ language of § 1441(b) does not prevent a finding that the
removal was procedurally defective.”); Standing v. Watson Pharm., 2009 WL 842211, *5 (C.D.
Cal. Mar. 26, 2009) (Joined and served requirement “is not implicated where the non-forum
defendant (or forum defendant) seeks to remove the action prior to the service of any
The Court joins those courts who have held that “joined and served” is not a loophole for
an in-state defendant to remove a case before he has been properly served. A defendant who has
yet to be served has a choice whether to participate in the case. And if he chooses to participate
by disturbing the plaintiff’s choice of forum and removing to federal court, his citizenship should
be considered just as that of a defendant who has been served. Any other reading of the statute
In the Reply, Plaintiff argues for the first time that she is a citizen of California. (Reply
at 3.) She also argues that because the KLLM is an LLC, it must allege the citizenship of every
owner or member—which it has failed to do. (Id.) But “the district court need not consider
arguments raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th
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would encourage gamesmanship and undercut § 1441(b)’s purpose of limiting diversity removal
when the defendant is already at home. See Albertson’s, Inc. v. Comm’r, 42 F.3d 537, 545 (9th
Cir. 1994) (holding that a court “may not adopt a plain language interpretation of a statutory
provision that directly undercuts the clear purpose of the statute.”). Accordingly, the Court
concludes that as a California citizen, Bell is not entitled to remove a case originally filed in
California state court.
Plaintiff seeks reasonable expenses incurred as a result of Defendants’ improper removal,
including $2,550 in attorneys’ fees. (Motion at 6.) Defendants do not object. “An order
remanding the case may require payment of just costs and any actual expenses, including
attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). Plaintiff’s Counsel
asserts that “Plaintiff has incurred $2,550.00 in attorney [sic] fees,” which “includes 8.5 hours
at $300/hour to draft the Motion to Remand and appear for the hearing.” (You Declaration ¶ 7.)
Because the Court vacates the hearing, Plaintiff cannot recover fees associated with it. The
Court determines that six hours at $300/hour is a reasonable for time spent drafting the Motion,
the You Declaration, the Reply, and the You Reply Declaration. Accordingly, the Court
AWARDS $1,800 in attorneys’ fees to Plaintiff.
For the reasons set forth above, the Court:
1. GRANTS the Motion to Remand;
2. AWARDS $1,800 in attorneys’ fees to Plaintiff; and
3. VACATES the October 21, 2019 hearing.
IT IS SO ORDERED.
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