Diana Renate Kostolansky v. Costco Wholesale Corporation et al

Filing 9

MINUTE (IN CHAMBERS) ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE REMANDED TO SAN BERNARDINO COUNTY SUPERIOR COURT by Judge John F. Walter. Costco is hereby ordered to show cause, in writing, no later than October 2, 2024, why this Court should not remand this action. (iv)

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

ED CV 24-1908-JFW(SPx)

Title:

Diana Renate Kostolansky -v- Costco Wholesale Corporation, et al.

Date: September 26, 2024

PRESENT:
HONORABLE JOHN F. WALTER, UNITED STATES DISTRICT JUDGE
Shannon Reilly
Courtroom Deputy

None Present
Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS:
None
PROCEEDINGS (IN CHAMBERS):

ATTORNEYS PRESENT FOR DEFENDANTS:
None

ORDER TO SHOW CAUSE WHY THIS ACTION
SHOULD NOT BE REMANDED TO SAN BERNARDINO
COUNTY SUPERIOR COURT

On October 20, 2023, Plaintiff Diana Renate Kostolansky (“Plaintiff”) filed a Complaint
against Defendant Costco Wholesale Corporation (“Costco”),John Doe, and Does 1 to 20 in San
Bernardino County Superior Court, alleging only state law claims for relief and damages including
wage loss, hospital and medical expenses, general damages, loss of earning capacity, future loss
of earnings, and costs. On November 29, 2023, Costco filed its Answer to the Complaint. On
September 6, 2024, Costco filed a Notice of Removal, alleging that this Court has diversity
jurisdiction pursuant to 28 U.S.C. § 1332(a).
Federal courts are courts of limited jurisdiction, having subject matter jurisdiction over only
those matters authorized by the Constitution and Congress. See, e.g., Kokkonen v. Guardian Life
Ins. Co., 511 U.S. 375, 377 (1994). A suit filed in state court may be removed to federal court if
the federal court would have had original jurisdiction over the suit. 28 U.S.C. § 1441(a). “The right
of removal is entirely a creature of statute,” Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32
(2002), and the party seeking to avail itself of a removal statute bears the burden of showing that
removal is appropriate. See, e.g., Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 685
(9th Cir. 2006) (“[U]nder CAFA the burden of establishing removal jurisdiction remains, as before,
on the proponent of federal jurisdiction.”). Any doubts about the right to remove are resolved
against removal. Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir. 1992).
Diversity jurisdiction founded under 28 U.S.C. § 1332(a) requires that (1) all plaintiffs be of
different citizenship than all defendants, and (2) the amount in controversy exceed $75,000. See
28 U.S.C. § 1332(a). Moreover, an action must be removed within 30 days of a defendant's
receipt of the initial pleading setting forth a removable claim. 28 U.S.C. § 1446(b). If the claim was
not removable at the time of the initial pleading, a suit must be removed within 30 days of the
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defendant first ascertaining, based on an amended pleading or other papers, that the case is or
has become removable. Eyak Native Village v. Exxon Corp., 25 F.3d 773, 782 (9th Cir.1994);
Peabody v. Schroll Trust, 892 F.2d 772, 775 (9th Cir.1989). However, “[i]f the case is removable
from the outset, it must be removed within the thirty-day period specified by § 1446(b); subsequent
events do not make it ‘more removable’ or ‘again removable.’” Samura v. Kaiser Found. Health
Plan, Inc., 715 F.Supp. 970, 972 (N.D. Cal.1989) (citation omitted). If the case is not removed
during the thirty day period, the right to removal is waived and once waived, it is generally waived
forever regardless of the changes to the case. Dunn v. Gaiam, 166 F.Supp. 2d 1273, 1278-79
(C.D. Cal.2001).
In this case, although Costco was served with a copy of the Summons and Complaint and
filed its Answer on November 29, 2023, Costco did not file its Notice of Removal until September 6,
2024, more than nine months later. And, although Costco alleges in its Notice of Removal that
Plaintiff indicated that damages exceed $75,000, it fails to allege how or when it learned that
damages exceed $75,000.
Accordingly, Costco is hereby ordered to show cause, in writing, no later than October 2,
2024, why this Court should not remand this action. No oral argument on this matter will be heard
unless otherwise ordered by the Court. See Fed. R. Civ. P. 78; Local Rule 7-15. The Order will
stand submitted upon the filing of the response to the Order to Show Cause. In addition, Plaintiff is
ordered to inform the Court, in writing, no later than October 1, 2024, if it waives the procedural
defect discussed above.
If the parties file a stipulation and proposed order remanding this action to state court, the
Court will consider that a satisfactory response to the Order to Show Cause. Plaintiff’s failure to
respond to this Order to Show Cause will result in the waiver of the procedural defect discussed
above. If Plaintiff does not waive the procedural defect, Costco’s failure to respond to the Order to
Show Cause will result in the remand of this action.

IT IS SO ORDERED.

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