BATM Advanced Communications Limited v. Godigital Networks Corporation et al

Filing 10

ORDER by Chief Judge Vaughn R Walker GRANTING 3 Motion to Remand and DENYING AS MOOT 7 Motion for Expedited Hearing. The court retains jurisdiction over plaintiff's motion for fees and costs, which shall be heard, if at all, on June 22, 2006, the date originally noticed for plaintiff's motion to remand. (vrwlc1, COURT STAFF) (Filed on 4/12/2006)

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BATM Advanced Communications Limited v. Godigital Networks Corporation et al Doc. 10 Case 3:06-cv-02229-VRW Document 10 Filed 04/12/2006 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA United United States District Court 11 For the Northern District of California BATM ADVANCED COMMUNICATIONS LTD, Plaintiff, v GODIGITAL NETWORK CORP, et al, Defendants. / No C 06-2229 VRW 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER On March 28, 2006, defendants GoDigital Network Corp ("GoDigital") and Frank Akers filed a notice of removal of this action from the Alameda County superior court. Doc #1. On April 7, 2006, plaintiff BATM Advanced Communications Ltd ("BATM") timely moved to remand. Doc #3. In any civil action in which federal jurisdiction is based solely on diversity of citizenship, "such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 USC 1441(b). BATM argues that removal Dockets.Justia.com Case 3:06-cv-02229-VRW Document 10 Filed 04/12/2006 Page 2 of 3 1 2 3 4 5 6 7 8 9 10 was improper because both GoDigital and Akers are California residents. The complaint alleges that GoDigital and Akers are California residents. Doc #1, Ex 1 (Compl). In their notice of removal, GoDigital and Akers admit they are both California residents. Doc #1 7-8. It is clear that removal on the basis of diversity was improper. Further, no other basis for federal jurisdiction appears on the face of the complaint, which alleges only claims arising under state law. was therefore improper. BATM's motion to remand is accordingly GRANTED. This See generally Compl. Removal United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 action is hereby REMANDED to the Alameda County superior court. BATM's administrative motion to hear its motion to remand on an expedited basis, Doc #7, is DENIED AS MOOT. BATM also requests an award of fees and costs on the ground that there was no objectively reasonable basis for removal. See 28 USC 1447(c); Martin v Franklin Capital Corp, 126 S Ct 704 (2005). Notwithstanding that the action is remanded to the state court, the court retains jurisdiction over BATM's motion for fees and costs. See Moore v Permanente Medical Group, Inc, 971 F2d 443, The court will hear the parties on this 445 (9th Cir 1992). motion, if at all, on June 22, 2006, the date originally noticed for BATM's motion to remand. // // // // // 2 Case 3:06-cv-02229-VRW Document 10 Filed 04/12/2006 Page 3 of 3 1 2 3 4 5 6 7 8 9 10 With regard to the practice of the undersigned in calculating fee awards, the court directs the parties' attention to In re HPL Technologies Sec, Inc Litig, 366 F Supp 2d 912, 919-22 (ND Cal 2005) (Walker), and Willis v City of Oakland, 231 FRD 597, 600-02 (ND Cal 2005) (Walker) (applying the principles of HPL outside the class action context). SO ORDERED. United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VAUGHN R WALKER United States District Chief Judge 3

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