Atalie Daniel v. M-1, LLC et al

Filing 47

ORDER signed by Judge Garland E. Burrell, Jr. on 9/30/2015 ORDERING that Plaintiff's 31 Motion to Remand is GRANTED and this case is REMANDED to the Superior Court of California, County of Kern. Copy of remand order sent. CASE CLOSED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ATALIE DANIEL,

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Plaintiff,

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No. 1:15-cv-00746-GEB-JLT

v.

REMAND ORDER

M-I, LLC, a.k.a. M-I SWACO, A
SCHLUMBERGER COMPANY; TIM
O’NEIL; FREEPORT-MCMORAN,
INC, formerly known as PXP
OIL; KENAI DRILLING LTD.;
OCCIDENTAL PETROLEUM
CORPORATION; CALIFORNIA
RESOURCES CORPORATION,

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Defendants.
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Plaintiff

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moves

to

remand

this

action

to

the

state

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court from which Defendant M-I LLC (“M-I”) removed it, arguing,

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inter

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“FAC”)]

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Removal [(“NOR”)] . . . .” (Pl.’s Remand Mot. (“Mot.”) 2:10–11,

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ECF No. 31.)1 However, Plaintiff conversely asserts she filed the

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FAC in state court after M-I filed its NOR. (Mot. 7:15–21.) The

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filing date is significant, because complete diversity must exist

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both when the action is filed in state court and when it is

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removed. Strotek Corp. v. Air Transp. Ass’n of Am., 300 F.3d

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1129, 1131 (9th Cir. 2002) (citations omitted).

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1

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alia,

“Plaintiff

naming

four

filed

new

a

parties

First

Amended

prior

to

Complaint

[M-I]’s

[(the

Notice

of

The four new parties are Freeport-McMoRan Inc., Kenai Drilling Limited,
Occidental Petroleum Corporation, and California Resources Corporation
(collectively, the “new Defendants”). (FAC 1, ECF No. 6.)

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On

May 14,

2015,

M-I

removed

this

case

from

the

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Superior Court of California, County of Kern, asserting in its

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NOR that the sole basis for removal is diversity of citizenship

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jurisdiction under 28 U.S.C. § 1332. (NOR ¶ 3, ECF No. 1.)

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I. LEGAL STANDARD

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“There

is

a

‘strong

presumption

against

removal

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jurisdiction,’

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establishing that removal is proper.” Lindley Contours, LLC v.

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AABB Fitness Holdings, Inc., 414 F. App’x 62, 64 (9th Cir. 2011)

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(quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).

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In

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compliance

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parties be in complete diversity and the amount in controversy

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exceed $75,000.” Matheson v. Progressive Specialty Ins. Co., 319

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F.3d 1089, 1090 (9th Cir. 2003) (per curiam).

a

and

diversity

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with

To

the

action,
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removing

the

U.S.C.

determine

party

removing

§ 1332,

whether

has

party

which

complete

the

burden

must

“requires

diversity

of

establish
that

exists,

the

the

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court generally looks to “the face of the complaint.” Miller v.

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Grgurich, 763 F.2d 372, 373 (9th Cir. 1985) (citations omitted).

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As stated, for removal purposes, complete diversity must exist

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both when the action is filed in state court and when it is

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removed.

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(“[T]he core principle of federal removal jurisdiction on the

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basis of diversity . . . [is] that it is determined (and must

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exist) as of the time the complaint is filed and removal is

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effected.”).

Strotek

Corp.,

300

F.3d

at

1131

(citations

omitted)

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Further, “[c]ourts have an independent obligation to

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determine whether subject-matter jurisdiction exists, even when

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no party challenges it.” Hertz Corp. v. Friend, 559 U.S. 77, 94
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(2010). Moreover, “[t]he removal statute is strictly construed,

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and any doubt about the right of removal requires resolution in

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favor of remand.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d

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1241, 1244 (9th Cir. 2009) (citing Gaus, 980 F.2d at 566); see

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also 28 U.S.C. § 1447(c) (“If at any time before final judgment

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it

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jurisdiction, the case shall be remanded.”).

appears

that

the

district

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court

lacks

subject

matter

II. DISCUSSION

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The parties assume the original Complaint, filed in

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state court on March 30, 2015, (NOR Ex. A-1, ECF No. 1-2), is the

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operative complaint. In her Motion to Remand, Plaintiff discusses

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the procedural timeline in state court and asserts she filed the

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FAC in state court on May 20, 2015, after M-I filed its NOR on

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May 14, 2015. (Mot. 7:15–21.) Unsurprisingly, M-I responds “it is

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undisputed that only one [c]omplaint had been filed in state

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court . . . . [and] [i]t was not until after M-I removed the case

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that Plaintiff filed the [FAC].” (Def.’s Opp’n to Mot. (“Opp’n”)

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4:13–24, ECF No. 37.)

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To determine whether the original Complaint or the FAC

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controls in this motion, the Court sua sponte takes judicial

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notice of the FAC filed in state court, (Mot. Ex. C, ECF No. 31-

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3), and the amended proof of service of summons (the “Amended

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Summons”),

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attached as exhibits to her Motion to Remand. The Court may take

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judicial notice of these exhibits, since the FAC filed in state

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court and the Amended Summons are publicly filed documents in

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another court. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442

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F.3d 741, 746 (9th Cir. 2006) (“We may take judicial notice of

(Mot.

Ex.

G,

ECF

No.

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31-7),

which

Plaintiff

has

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court filings and other matters of public record.”); see also

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Bank of New York Mellon v. Hong Xuan Vo, No. 14-CV-05110-LHK,

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2015 WL 662221, at *1 n.1 (N.D. Cal. Feb. 12, 2015) (taking

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judicial

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proofs of service of the summons and complaint, on a motion to

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remand).

notice

of

plaintiff’s

state

court

complaint

and

the

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These exhibits establish that the FAC controls in this

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motion, since Plaintiff filed the FAC in state court before M-I

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filed its NOR. Specifically, the FAC filed in state court is

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filed-stamped

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Kern, on May 8, 2015. (Mot. Ex. C.) Although Plaintiff asserts

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she filed the FAC in state court on May 20, 2015, (Mot. 7:20–21),

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the

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Summons, and not the FAC, on that date. (Mot. Ex. G.) Since

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Plaintiff filed the FAC in state court on May 8, 2015, before M-I

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filed

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complaint. Thus, as pertinent here, it must be determined whether

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complete diversity existed when Plaintiff filed the FAC in state

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court

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Strotek, 300 F.3d at 1131.

record

the

shows

its

and

in

NOR

when

Superior

that

on

the

May 14,

M-I

Court

state

the

California,

court

2015,

removed

of

the

case

received

FAC

to

is

County

the

the

federal

of

Amended

operative

court.

See

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Title 28 U.S.C. § 1446(a) requires, inter alia, that a

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notice of removal “contain[] a short and plain statement of the

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grounds

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remove the case. Here, M-I’s NOR is deficient because it has not

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alleged

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Instead,

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original Complaint. Therefore, M-I has not met its burden of

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establishing complete diversity exists in this case.

for

or

removal”

addressed

its

NOR

is

which

the

entitle

the

citizenship

based

on

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an

of

petitioning

the

inoperative

new

party

to

Defendants.

complaint,

the

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The court may construe a removing party’s “opposition

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as an amendment to its notice of removal.” Cohn v. Petsmart,

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Inc., 281 F.3d 837, 840 n.1 (9th Cir. 2002) (citing Willingham v.

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Morgan, 395 U.S. 402, 407 n.3 (1969) (“[I]t is proper to treat

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the removal petition as if it had been amended to include the

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relevant information contained in the later-filed affidavits.”);

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28 U.S.C. § 1653); Nat’l Union Fire Ins. Co. of Pittsburgh, PA v.

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Tokio Marine & Nichido Fire Ins. Co., Ltd (U.S. Branch), No.

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10CV1733 JLS CAB, 2010 WL 4072466, at *1 (S.D. Cal. Oct. 18,

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2010)

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jurisdictional

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also . . . construe the brief in opposition to the Motion to

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Remand as an amendment to the Notice of Removal.”).

(citations

omitted)

facts]

(“The

from

the

Court
notice

takes

this

proof

of

removal

[of

and

may

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But even if the court construes M-I’s opposition as an

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amendment to its NOR, no information in the opposition cures the

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deficient NOR. In opposition, M-I acknowledges Defendants Kenai

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Drilling

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possibly California citizens, but does not allege the citizenship

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of the other two defendants. (Opp’n 13:1–4.) M-I further argues

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this

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§ 1447(e)

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argument is misplaced, since § 1447(e) applies when a plaintiff

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seeks to join additional, non-diverse defendants after removal.

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In contrast, the Plaintiff here joined the new Defendants before

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removal.

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relevant information needed to support diversity jurisdiction.

Limited

Court
to

and

“should
deny

Therefore,

California

exercise
joinder.”

M-I’s

its

Resources

discretion

(Opp’n

opposition

Corporation

under

12:21–24.)

contains

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However,

no

are

U.S.C.
M-I’s

additional,

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Moreover, in her Motion to Remand, Plaintiff argues,

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inter alia, that Defendants Kenai Drilling Limited and California
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Resources Corporation are both California citizens, and thus,

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removal is improper. (Mot. 2:23–25.)2 For purposes of diversity

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jurisdiction, a corporation is a citizen of the state in which it

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is incorporated and the state where it has its principal place of

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business.

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principal place of business is the corporation’s nerve center,

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which is “usually its main headquarters . . . .” Hertz Corp., 559

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U.S. at 93. Here, Plaintiff alleges in the FAC that Defendants

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Kenai Drilling Limited and California Resources Corporation are

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U.S.C.

§ 1332(c)(1).

Further,

a

corporation’s

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corporations

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therefore,

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citizens of California. Plaintiff also alleges she is a citizen

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of California. (FAC ¶ 4.) Thus, it appears from the face of the

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FAC that complete diversity does not exist.

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headquartered
Plaintiff

alleges

in

California

both

defendants

(FAC
are,

¶¶ 10–11);
in

part,

III. CONCLUSION

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For the stated reasons, Plaintiff’s Motion to Remand is

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GRANTED, and this case is remanded to the Superior Court of

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California, County of Kern.

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Dated:

September 30, 2015

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Defendant Tim O’Neil also appears to be non-diverse, but in its NOR, M-I
argued that Plaintiff fraudulently joined Defendant O’Neil. (NOR ¶ 7.) The
court will not address this argument, since the presence of two other nondiverse defendants shows this case lacks complete diversity.

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