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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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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.

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Now before the Court is plaintiffs’ motion to remand. Defendant Genentech, Inc. Tax Reduction
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Plan has filed an opposition and plaintiffs have filed a reply. Plaintiffs’ motion raises three distinct
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grounds for remand: (1) remand the entire action to San Mateo County Superior Court because of
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procedural flaws in defendant’s removal; (2) remand only the first cause of action for declaratory
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judgment as to abandonment to San Mateo County Superior Court and stay the remaining proceedings
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under the Court’s discretionary power to sever the federal claims from the state law claims; or (3) stay
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all proceedings in this Court, pursuant to the Colorado River abstention doctrine, until the San Francisco
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County Superior Court rules on the issue of abandonment and/or separation in a separate action between
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the parties currently pending there. See Colorado River Water Conservation Dist. v. United States, 424
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U.S. 800, 817 (1976).
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Upon preliminary review of the parties’ papers, the Court is inclined to agree with plaintiffs that

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a California court applying California law should decide the novel legal issue raised by plaintiffs’

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abandonment cause of action. In particular, the Court is inclined to agree that Colorado River

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abstention is appropriate here, where currently pending before the San Francisco County Superior Court

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is a case involving the same parties that will likely require that court to decide the same or similar

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abandonment issue. See Nakamoto v. Sit, et al., No. CGC-12-520301, San Francisco County Superior

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Court. However, because plaintiffs raised the Colorado River abstention doctrine argument in reply,

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defendants have had no opportunity to brief its applicability here. Therefore, the Court hereby

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DIRECTS defendants to file a sur-reply, no later than November 30, 2012, addressing the abstention

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United States District Court
For the Northern District of California

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issues raised in plaintiffs’ reply. The Court also CONTINUES the hearing currently set for November

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30, 2012, to Wednesday, December 5, 2012, at 4:00pm.

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IT IS SO ORDERED.

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Dated: November 27, 2012
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SUSAN ILLSTON
United States District Judge

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