Abufarie v. Zeiadeh, et al.

Filing 64

MINUTES (IN CHAMBERS)by Judge Andrew J. Guilford: Granting Motion to Remand and Striking Related Docket Entries #51 . This matter is appropriate for resolution without oral argument. See Fed. R. Civ. P. 78(b). The Court VACATES the January 23, 2017 hearing. Zeiadeh has filed a motion to remand. Putting aside whether such a motion is the best way to handle this irregular situation, the Court GRANTS the motion to remand, while DENYING the request for fees. (Dkt. No. 51.) The clerk is instructed to strike all docket entries, party appearances, and caption entries related to the irregular removal attempt. (Dkt. Nos. 19, 46.) (see document for additional details) (mba)

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

SACV 16-01971 AG (DFMx)

Title

VAPE SOCIETY SUPPLY CORP. v. TARIQ JIHAD ZEIADEH ET AL.

Present: The Honorable

January 12, 2017

ANDREW J. GUILFORD

Lisa Bredahl
Deputy Clerk
Attorneys Present for Plaintiffs:
Proceedings:

Date

Not Present
Court Reporter / Recorder

Tape No.

Attorneys Present for Defendants:

[IN CHAMBERS] ORDER GRANTING MOTION TO
REMAND AND STRIKING RELATED DOCKET ENTRIES

This matter is appropriate for resolution without oral argument. See Fed. R. Civ. P. 78(b).
The Court VACATES the January 23, 2017 hearing.
Vape Society Supply Corp., the plaintiff here, sued Tariq Jihad Zeiadeh and numerous other
defendants for alleged copyright and trademark infringement, among other things. (Compl.,
Dkt. No. 8, PageID 296–301.) With a few hiccups along the way, the case has proceeded.
Vape Society filed an application for a temporary restraining order, followed by a request for
a preliminary injunction. (Ex Parte Appl., Dkt. No. 20, PageID 482.) The Court denied both.
(Order, Dkt. No. 41, PageID 1102; Order, Dkt. No. 63, PageID 1741.) The defendants, for
their part, have filed oppositions to various motions, and recently filed their own motion to
dismiss the case, or, alternatively, for a more definite statement of the claims to relief. (Mot.
to Dismiss, Dkt. No. 52, PageID 1376–78.)
And then there’s docket entry 19.
On November 22, 2016, Vape Society submitted a document docketed as “Counterclaim
Filed as Notice of Removal.” Though the procedure is far from clear, it appears that Vape
Society is named as a defendant in a purportedly “related” state-court declaratory judgment
action. (See Orange Cty. Super. Ct. Compl., Dkt. No. 19-1, PageID 391.) And, in Vape
Society’s view, the claims at issue in that state-court proceeding should have been raised here,
CIVIL MINUTES - GENERAL
Page 1 of 3

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

SACV 16-01971 AG (DFMx)

Date

January 12, 2017

Title

VAPE SOCIETY SUPPLY CORP. v. TARIQ JIHAD ZEIADEH ET AL.

as “compulsory counterclaims.” But rather than dispute the propriety of that second-in-time
state-court lawsuit, or attempt to remove the case as a separate-but-related action, Vape
Society opted to “remove” the claims in the state-court complaint, and subsume
them—within this case—as supposed “counterclaims” under Federal Rule of Civil
Procedure 13(a).
No. Proceedings of that sort are unorthodox, if not unheard of.
Removal has always been a creature of statute. Martin v. Hunter’s Lessee, 14 U.S. 304, 349
(1816). To remove a “civil action” from a state court to a federal court, a defendant must file a
notice of removal in the federal forum “containing a short and plain statement of the
grounds for removal, together with a copy of all process, pleadings, and orders.” 28 U.S.C.
§ 1446(a); Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 551 (2014). If
“removal jurisdiction” is proper, 28 U.S.C. § 1441, then the entire action “proceeds in the
federal court as if it had been commenced there,” 14C C. Wright & A. Miller, Federal
Practice and Procedure § 3729, p. 427–28 (3th ed. 2009). Thereafter, the federal rules
governing civil practice apply, Fed. R. Civ. P. 81(c)(1), and under local rule, the parties may
submit a notice of related cases. C.D. Cal. L.R. 83-1.3.1.
These authorities—statutes, cases, rules, practice guides, and even common sense—all point
to the same conclusion: a state-court defendant may not subsume one case within another
through the removal process. Because Vape Society’s removal attempt is so obviously wrong,
the Court need not reach the parties remaining arguments.
Zeiadeh has filed a motion to remand. Putting aside whether such a motion is the best way
to handle this irregular situation, the Court GRANTS the motion to remand, while
DENYING the request for fees. (Dkt. No. 51.) The clerk is instructed to strike all docket
entries, party appearances, and caption entries related to the irregular removal attempt. (Dkt.
Nos. 19, 46.)
:

CIVIL MINUTES - GENERAL
Page 2 of 3

0

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

SACV 16-01971 AG (DFMx)

Date

Title

VAPE SOCIETY SUPPLY CORP. v. TARIQ JIHAD ZEIADEH ET AL.
Initials of
Preparer

CIVIL MINUTES - GENERAL
Page 3 of 3

January 12, 2017

lmb