Moody v. Delta Air Lines et al

Filing 18

ORDER signed by Judge William B. Shubb on 10/21/11 ORDERING that the court will retain jurisdiction over the proceeding. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo---11
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JEAN MOODY,
Plaintiff,

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v.

NO. CIV. 2:11-1739 WBS CKD

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COUNTY OF SACRAMENTO; DELTA AIR
LINES INC., a Delaware
corporation, and DOES 1-100,

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Defendants.

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ORDER

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----oo0oo---This proceeding was removed from state court by Delta

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Airlines on June 28, 2011.

However, under the terms of 28 U.S.C.

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§ 1441(b), a party may remove an action on the basis of diversity

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“only if none of the parties in interest properly joined and

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served as defendants is a citizen of the State in which such

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action is brought.”

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removal, the County of Sacramento, having been served on June 20,

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2011, was a properly joined and served defendant, and is a

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resident of California.

28 U.S.C. § 1441(b).

At the time of

See Illinois v. City of Milwaukee, 406
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U.S. 91, 97 (1972) (“It is well settled that for the purposes of

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diversity of citizenship, political subdivisions are citizens of

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their respective States.”).

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removal under § 1441(b) was improper.

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Therefore, it would appear that

The Ninth Circuit has held, however, that the

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“additional limitation on diversity-based removal jurisdiction

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[in § 1441(b)] is a procedural, or non-jurisdictional, rule.”

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Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 939 (9th Cir.

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2006).

Under § 1441(c), a motion to remand on the basis of a

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defect in removal procedure, such as a violation of section

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1441(b), must be brought within thirty days or the defect is

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waived.

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plaintiff failed to object to the improper removal of this

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proceeding within thirty days, the court is unable to remand the

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proceeding to the proper forum.

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retain jurisdiction over the proceeding.

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28 U.S.C. § 1441(c); Lively, 456 F.3d at 942.

Because

Accordingly, the court will

IT IS SO ORDERED.
DATED: October 21, 2011

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