Sit et al v. Genentech, Inc. Tax Reduction Investment Plan et al

Filing 59

ORDER RE: FURTHER BRIEFING ON MOTION TO REMAND (Illston, Susan) (Filed on 11/27/2012)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 12 13 14 15 16 No. C 12-04864 SI; Related Case: No. C 12-05077 SI KINFONG SIT and MEE WAI CHIU, Plaintiffs, ORDER RE: FURTHER BRIEFING ON MOTION TO REMAND v. GENENTECH, INC. TAX REDUCTION INVESTMENT PLAN; AYUMI NAKAMOTO; and DOES 1 to 20, Defendants. / 17 Now before the Court is plaintiffs’ motion to remand. Defendant Genentech, Inc. Tax Reduction 18 Plan has filed an opposition and plaintiffs have filed a reply. Plaintiffs’ motion raises three distinct 19 grounds for remand: (1) remand the entire action to San Mateo County Superior Court because of 20 procedural flaws in defendant’s removal; (2) remand only the first cause of action for declaratory 21 judgment as to abandonment to San Mateo County Superior Court and stay the remaining proceedings 22 under the Court’s discretionary power to sever the federal claims from the state law claims; or (3) stay 23 all proceedings in this Court, pursuant to the Colorado River abstention doctrine, until the San Francisco 24 County Superior Court rules on the issue of abandonment and/or separation in a separate action between 25 the parties currently pending there. See Colorado River Water Conservation Dist. v. United States, 424 26 U.S. 800, 817 (1976). 27 28 Upon preliminary review of the parties’ papers, the Court is inclined to agree with plaintiffs that 2 a California court applying California law should decide the novel legal issue raised by plaintiffs’ 3 abandonment cause of action. In particular, the Court is inclined to agree that Colorado River 4 abstention is appropriate here, where currently pending before the San Francisco County Superior Court 5 is a case involving the same parties that will likely require that court to decide the same or similar 6 abandonment issue. See Nakamoto v. Sit, et al., No. CGC-12-520301, San Francisco County Superior 7 Court. However, because plaintiffs raised the Colorado River abstention doctrine argument in reply, 8 defendants have had no opportunity to brief its applicability here. Therefore, the Court hereby 9 DIRECTS defendants to file a sur-reply, no later than November 30, 2012, addressing the abstention 10 United States District Court For the Northern District of California 1 issues raised in plaintiffs’ reply. The Court also CONTINUES the hearing currently set for November 11 30, 2012, to Wednesday, December 5, 2012, at 4:00pm. 12 13 IT IS SO ORDERED. 14 Dated: November 27, 2012 15 SUSAN ILLSTON United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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