Thompson v. GenOn Energy Services, LLC et al

Filing 19

ORDER re March 4 Hearing re 12 MOTION to Remand filed by Dennis Thompson (tehlc1, COURT STAFF) (Filed on 2/22/2013)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 DENNIS THOMPSON, Plaintiff, 7 8 9 v. GENON ENERGY SERVICES, LLC, et al., ORDER RE MARCH 4 HEARING Defendant. 11 For the Northern District of California United States District Court 10 NO. C13-0187 TEH 12 This case will come before the Court on March 4, 2013, on Plaintiff’s motion to 13 remand to state court. Defendants argue that this Court has diversity jurisdiction based on 14 the fraudulent joinder of two individual in-state defendants. The Court now orders the 15 parties to be prepared to address the following questions at oral argument: 16 1) The Ninth Circuit has stated that: 17 18 19 20 [W]hen, on a motion to remand, a showing that compels a holding that there is no reasonable basis for predicting that state law would allow the plaintiff to recover against the in-state defendant necessarily compels the same result for the nonresident defendant, there is no improper joinder; there is only a lawsuit lacking in merit. In such cases, it makes little sense to single out the in-state defendants as “sham” defendants and call their joinder improper. 21 Hunter v. Philip Morris USA, 582 F.3d 1039, 1044 (9th Cir. 2009) (quoting Smallwood v. 22 Illinois Central R.R. Co., 385 F.3d 568, 574 (5th Cir.2004) (en banc)). Should this analysis 23 be applied here? 24 2) Do Defendants’ arguments regarding exhaustion (§ III.B.), preemption of privacy claims 25 (§ III.D.), and failure to state a claim for privacy violations (§ III.E.) apply to all of the 26 defendants, including out-of-state defendants? If so, does Hunter suggest that these 27 arguments are improperly cloaked as fraudulent joinder arguments? 28 1 If the parties wish to file supplemental briefs on this issue, they shall file any such 2 briefs of no more than five pages in length by Thursday, February 28 at 12:00 pm. 3 4 IT IS SO ORDERED. 5 6 Dated: 2/22/13 7 THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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