Deidre Lewis v. QVC, Inc. et al

Filing 17

MINUTES (IN CHAMBERS) ORDER by Judge David O. Carter denying 12 MOTION to Remand Case to State Court. (see document for details). (dro)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL

Case No. SACV 17-0287-DOC (KESx)

Date: April 20, 2017

Title: DEIDRE LEWIS V. QVC, INC.

PRESENT:
THE HONORABLE DAVID O. CARTER, JUDGE
Deborah Goltz
Courtroom Clerk

Not Present
Court Reporter

ATTORNEYS PRESENT FOR
PLAINTIFF:
None Present

ATTORNEYS PRESENT FOR
DEFENDANT:
None Present

PROCEEDINGS (IN CHAMBERS): ORDER DENYING PLAINTIFF’S
MOTION TO REMAND [12]
Before the Court is Plaintiff’s Motion to Remand (“Motion”) (Dkt. 23). The Court
finds this matter appropriate for resolution without oral argument. See Fed. R. Civ. P. 78;
L.R. 7-15. After reviewing the moving papers and considering the parties’ arguments, the
Court DENIES Plaintiff’s Motion.
I.

Background
A.

Facts

The Court adopts the facts as set out in Plaintiff’s Complaint (“Complaint”) (Dkt.
1-1).1
On March 3, 2016, Plaintiff Deidre Lewis (“Plaintiff”) was using a Cook’s
Essentials Programmable Pressure Cooker, Model CEPC600S (“Cooker”) when it
exploded. Compl. ¶ 8. Plaintiff suffered injuries from the explosion including a traumatic
brain injury, second and third degree burns, and various orthopedic injuries. Id. ¶ 10.
Plaintiff was also pregnant at the time of the explosion. Id. ¶ 11.

1

As explained in detail below, although Plaintiff filed a First Amended Complaint in state court, it has not been
properly filed with this Court. Therefore, the Court relies on the original Complaint.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 17-287-DOC (KES)

Date: April 20, 2017
Page 2

Defendant QVC, Inc. (“QVC”) designed, manufactured, and distributed the
Cooker. Id. ¶ 9. Plaintiff alleges that the cooker contained a manufacturing defect when it
left QVC’s possession. Id. ¶ 14.
B.

Procedural History

Plaintiff filed this suit in the California Superior Court for the County of Orange
on October 26, 2016 (Dkt. 1). Plaintiff filed a First Amended Complaint (“FAC”) on
February 8, 2017 (Dkt. 12-2), adding Spectrum Brands, Inc.; Salton, Inc.; QVC Ontario,
LLC; and Pick Five Imports, Inc. (“Pick Five”) as defendants to the action. Plaintiff did
not serve the FAC on QVC or the added defendants until February 16 and 17, 2017, after
QVC had already removed the action to the Central District of California (Dkt. 1).
Plaintiff brings the following claims: (1) strict products liability, manufacturing
defect; (2) strict products liability, design defect; (3) strict products liability, failure to
warn; and (4) negligence. See Compl.
On March 21, 2017, Plaintiff filed the instant Motion. QVC opposed on April 3,
2017 (Dkt. 14), and Plaintiff replied on April 10, 2017 (Dkt. 15).
II.

Legal Standard

“If at any time before final judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). Removal of a case
from state court to federal court is governed by 28 U.S.C. § 1441, which provides in
pertinent part that “any civil action brought in a State court of which the district courts of
the United States have original jurisdiction, may be removed . . . to the district court of
the United States for the district and division embracing the place where such action is
pending.” The removing defendant must file a notice of removal in the appropriate
United States District Court, together with all process, pleadings, and orders served upon
the defendant. 28 U.S.C. § 1446(a). Notice of removal must be filed within thirty days of
receiving a copy of the original complaint, or “within 30 days after the service of
summons upon the defendant, if such initial pleading has then been filed in court and is
not required to be served on the defendant, whichever period is shorter.” 28 U.S.C. §
1446(b). Remand may be ordered for lack of subject matter jurisdiction or any defect in
the removal procedure. 28 U.S.C. § 1447(c).
To protect the jurisdiction of state courts, removal jurisdiction should be strictly
construed in favor of remand. Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 698
(9th Cir. 2005) (citing Shamrock Oil & Gas Corp. v. Sheet, 313 U.S. 100, 108–09
(1941)). If there is any doubt as to the right of removal in the first instance, remand must
be ordered. See Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir. 1988).

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 17-287-DOC (KES)

III.

Date: April 20, 2017
Page 3

Analysis

Plaintiff requests that this case be remanded to state court because there was not
complete diversity between the parties at the time of removal. Mot. at 4. Plaintiff argues
that while her original Complaint named only QVC as a defendant, her FAC added Pick
Five, a California corporation, destroying diversity. Mot. at 4. Indeed, the presence of any
single plaintiff from the same state as any single defendant destroys “complete diversity”
and strips the federal courts of diversity jurisdiction over a matter. Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 553 (2005).
QVC argues that an unserved state-court pleading is “null and void on the date the
action is removed to the federal court.” Opp’n at 5 (quoting Beecher v. Wallace, 381 F.2d
372, 373 (9th Cir. 1967)). QVC served Plaintiff with its Notice of Removal on February
16, 2017 at 4:28 p.m., and asserts that Plaintiff had not served Defendants notice of the
FAC at that time. Opp’n at 3 (citing Declaration of Eileen Ahern (Dkt. 14-1) ¶ 5; id. Ex.
D). That is correct: Pick Five received notice of the FAC on February 16, 2017 at 5:00
pm. See id. at 7; see also Declaration of Jennifer Hu (Dkt. 14-6) ¶ 5. The other
Defendants received notice of the FAC on the next day, February 17, 2017. See
Declaration of Nigel Stamp (Dkt. 14-15) ¶ 7; Declaration of John Misko (Dkt. 14-11) ¶¶
6–7.
Both Ninth Circuit and California law are clear that an “amended pleading
supersedes the original pleading.” Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.
1992); Viera v. Viera, 107 Cal. App. 2d 179, 180 (1951). “[A]fter amendment the original
pleading no longer performs any function and is ‘treated thereafter as non-existent.’”
Ferdik, 963 F.2d at 1262 (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)).
However, courts in the Ninth Circuit have found that an amended complaint supersedes
the original complaint “when the amended complaint is properly served, not when it is
filed.” Doe v. Unocal Corp., 27 F. Supp. 2d 1174, 1180 (C.D. Cal. 1998); see also Rangel
v. Bridgestone Retail Ops., LLC, 200 F. Supp. 3d 1024, 1029 n.2 (C.D. Cal. 2016); Goel
v. Coalition Am. Holding Co., Inc., No. CV 11-2349 GAF (Ex), 2011 WL 13128299, at
*5 (C.D. Cal. May 19, 2011); Goldberg v. Cameron, No. 5:15-cv-02556-RMW, 2015
WL 5316339, at *2–3 (N.D. Cal. Sept. 11, 2015).
Finding an amended complaint superseded the original complaint immediately
upon filing “would leave a case in a state of suspended animation in the interim between
filing and service of the amended complaint . . . .” Doe, 27 F. Supp. 2d at 1180. Further,
federal law requires a defendant wishing to remove a case to federal court to file its
notice of removal within thirty days of receiving the initial state court pleading. 28 U.S.C.
§ 1446(b). If merely filing an amended complaint made the amended complaint the
operative complaint, a plaintiff could

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 17-287-DOC (KES)

Date: April 20, 2017
Page 4

effectively prevent a defendant from removing by filing and serving
a complaint and then immediately filing, without serving, an
amended complaint. Upon filing, the amended complaint would
supersede the original complaint, and the defendant could no longer
remove the case based on that complaint. Without having received
the amended complaint, however, the defendant could not draft a
notice of removal explaining why the amended complaint was also
removable. The plaintiff could prevent removal by waiting to serve
the amended complaint until the defendant’s 30-day removal
window after service of the initial complaint had lapsed.
Goel, 2011 WL 13128299, at *6. Such procedural manipulation is unacceptable, and this
Court will not adopt such a rule.
Therefore, the Court finds that an amended complaint supersedes the original
complaint only when the amended complaint is served. Because Plaintiff did not serve
notice of the FAC on Defendants until after QVC removed the action to the District of
California, the operative complaint is Plaintiff’s original Complaint. Diversity
jurisdiction therefore exists because QVC, a Delaware corporation with its principal place
of business in Pennsylvania, is the only named Defendant, and Plaintiff is a resident of
California. See Removal ¶¶ 6–7. In addition, the amount in controversy, although not
specified in the Complaint, is almost certainly in excess of $75,000.00. See id. ¶¶ 13–18.
Accordingly, the Court DENIES Plaintiff’s Motion to Remand for lack of
diversity jurisdiction.
IV.

Disposition
For the foregoing reasons, the Court DENIES Plaintiff’s Motion to Remand.
The Clerk shall serve this minute order on the parties.

MINUTES FORM 11
CIVIL-GEN

Initials of Deputy Clerk: djg