Lena Simmons v. Costco Wholesale Corporation et al

Filing 19

ORDER DENYING MOTION TO REMAND [Dkt. 16] by Judge Sunshine Suzanne Sykes: The Court is in receipt of Plaintiff Lena Simmons motion to remand. [Mot. (16)]. The motion is fully briefed [Opp. (17); Reply (18)]. As set forth below, themotion is DENIED an d the hearing previously set for Friday, November 17, 2023is VACATED. Because the Court enjoys subject matter jurisdiction over the removed action and Plaintiff failed to timely raise her procedural objections to removal, remand is DENIED. The parties are instructed to proceed according to the schedule set forth in the Courts previously issued scheduling order. [Dkt. 13]. IT IS SO ORDERED. (shb)

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

5:23-cv-01334-SSS-SPx

Date November 13, 2023

Lena Simmons v. Costco Wholesale Corporation

Present: The Honorable

SUNSHINE S. SYKES, UNITED STATES DISTRICT JUDGE

Irene Vazquez

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Plaintiff(s):

Attorney(s) Present for Defendant(s):

None Present

None Present

Proceedings: ORDER DENYING MOTION TO REMAND [Dkt. 16]
The Court is in receipt of Plaintiff Lena Simmons’ motion to remand. [Mot.
(16)]. The motion is fully briefed [Opp. (17); Reply (18)]. As set forth below, the
motion is DENIED and the hearing previously set for Friday, November 17, 2023
is VACATED.
Plaintiff filed this case in Riverside Superior Court on November 23, 2023.
On July 10, 2023, Defendant Costco Wholesale, Corp. filed its notice of removal
asserting subject matter jurisdiction under 28 U.S.C. § 1332(a); see also 28 U.S.C.
1441(a). [Notice of Removal (“NOR”) (Dkt. 1)]. Plaintiff filed her motion for
remand on October 13, 2023.
Plaintiff argues that the case should be remanded because Defendant’s
notice of removal was not timely filed. She contends that documents supplied to
Defendant on April 20 and May 4 placed Defendant on notice that the
requirements for diversity jurisdiction were satisfied in this case, establishing a
removal deadline of June 3, 2023. [Mot. at 6]; see 28 U.S.C. § 1446(b)(3) (“a
notice of removal may be filed within 30 days after receipt by the defendant … of

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a copy of an amended pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has become removable.”).
However, the Court cannot entertain Plaintiff's objections to Defendant's
untimely removal because Plaintiff's motion to remand is itself untimely. Under 28
U.S.C. § 1447(c), “[a] motion to remand [a] case on the basis of any defect other
than lack of subject matter jurisdiction must be made within 30 days after the filing
of the notice of removal[.]” 28 U.S.C. § 1447(c) (2006); see In re Edward Jones
Holders Litig., 453 F. Supp. 2d 1210, 1213 (C.D. Cal. 2006), citing N. Cal. Dist.
Council of Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1038 (9th
Cir. 1995) (“[T]he district court had no authority to remand the case to the state
court on the basis of a defect in removal procedure raised for the first time more
than 30 days after the filing of the notice of removal.”). Arguments for remand on
procedural grounds are forfeited if not timely raised. Corona-Contreras v. Gruel,
857 F.3d 1025, 1029-30 (9th Cir. 2017).
Plaintiff’s alternative arguments regarding equitable estoppel are without
merit. Even if the Court were to accept the proposition that equitable principles
could override the clear statutory language in 28 U.S.C. §1447(c), Plaintiff’s
account of the parties’ conduct does not suggest that such relief would be
appropriate here. [Mot. at 14].
The Court is otherwise satisfied, based upon the notice of removal, that the
requirements for diversity jurisdiction are met. Defendant indicates that Plaintiff is
a citizen of California, and Defendant is a citizen of Washington state, rendering
the two parties completely diverse. It further states that the amount in controversy
requirement is met because, per Plaintiff’s Notice of Damages, she seeks
approximately $171,080 in damages. [NOR at ¶¶ 3, 4, 6-16].
Because the Court enjoys subject matter jurisdiction over the removed action
and Plaintiff failed to timely raise her procedural objections to removal, remand is
DENIED. The parties are instructed to proceed according to the schedule set forth
in the Court’s previously issued scheduling order. [Dkt. 13].
IT IS SO ORDERED.

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