Blanchard et al v. Fluent, Inc et al

Filing 47

ORDER GRANTING PLAINTIFFS' MOTION TO REMAND; DENYING PLAINTIFFS' REQUEST FOR COSTS. Civil Case Terminated. Signed by Judge Maxine M. Chesney on 06/08/17. (mmclc2, COURT STAFF) (Filed on 6/8/2017)

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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 MIRA BLANCHARD, et al., Plaintiffs, 8 v. 9 10 ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND; DENYING PLAINTIFFS’ REQUEST FOR COSTS FLUENT, INC., et al., Defendants. 11 United States District Court Northern District of California Case No. 17-cv-01551-MMC Re: Dkt. Nos. 16, 18 12 13 Before the Court are (1) plaintiffs’ “Motion to Remand to California Superior Court 14 and Request for Costs” (“Motion to Remand”), filed April 3, 2017, and (2) the Court’s 15 “Order Directing Defendant Fluent, LLC to Show Cause Why Action Should Not Be 16 Remanded” (“Order to Show Cause”), filed April 4, 2017. Defendant Fluent, LLC 17 (“Fluent”)1 has filed a single document comprising its opposition to the Motion to Remand 18 and response to the Order to Show Cause (“Opposition/Response”), to which plaintiffs 19 have replied. Having considered the parties’ written submissions, the Court rules as 20 follows.2 21 In the operative complaint, the First Amended Complaint (“FAC”), plaintiffs allege 22 against thirteen named defendants a single cause of action under § 17529.5 of the 23 California Business & Professions Code. On March 22, 2017, Fluent removed the above- 24 titled action on the asserted basis of diversity jurisdiction. 25 As previously noted by the Court, removal is proper in the instant action “if none of 26 1 The parties agree that Fluent was erroneously sued as Fluent, Inc. 2 By order filed June 2, 2017, the Court took the matter under submission. 27 28 1 the thirteen defendants is a citizen of California,” and, as the Court further noted, Fluent 2 had not, in its Notice of Removal, made the requisite showing as to the citizenship of all 3 thirteen defendants. (See Order to Show Cause, at 1:28-2:2.) In particular, Fluent had 4 relied on the FAC’s allegations as to citizenship, and, as the Court found, the FAC does 5 not allege facts sufficient to show all defendants are “citizens of states other than 6 California.” (Id. at 2:3-8 (quoting Notice of Removal ¶ 6).) 7 Although Fluent, in its Opposition/Response, has provided additional information 8 as to the defendants’ citizenship, the Court finds Fluent again has not met its “burden of 9 establishing that removal is proper.” See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). In particular, as to defendants Anglo Iditech and FortAnalysis8 Develop, Fluent 11 United States District Court Northern District of California 10 asserts it “is informed and believes” that those defendants “are part of a [ ] Delaware 12 entity named ‘, LLC.’” (See Opposition/Response, at 5:2-4.) As the Court 13 has already pointed out, however, an LLC “is a citizen of every state of which its 14 owners/members are citizens” and, consequently, a district court cannot determine the 15 citizenship of an LLC in the absence of a showing as to the identity and citizenship of 16 each of its members. (See Order to Show Cause, at 2:15-18 (quoting Johnson v. 17 Columbia Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006).) Here, Fluent 18 has not identified the members of, LLC, let alone the citizenship of each 19 such member, and thus has not shown defendants Anglo Iditech and FortAnalysis8 20 Develop are citizens of states other than California.3 21 Fluent acknowledges the above-noted deficiency in its Opposition/Response and 22 asks the Court to “afford Fluent additional time to assess this issue.” (See 23 Opposition/Response, at 5:6-12.) Diversity jurisdiction, however, “is determined (and 24 must exist) as of the time the complaint is filed and removal is effected.” See Strotek 25 26 27 28 3 Moreover, as to AdReaction, which is described in the FAC as a “business entity of unknown formation” (FAC ¶ 26), Fluent states said defendant is “related to . . . ‘North Island Marketing Corp’” (Richard Decl. ¶ 13), a Canadian corporation, but does not explain the nature of that relationship. 2 1 Corp. v. Air Transport Ass’n of America, 300 F.3d 1129, 1131 (9th Cir. 2002). As set 2 forth above, Fluent, in its Notice of Removal, did not make the requisite showing of 3 diversity, and, at this point in the proceedings, more than two months after that removal, 4 remains unable to do so.4 5 Under such circumstances, which include what was, in essence, a premature removal, see 28 U.S.C. § 1446(b)(3) (providing for removal “within 30 days after receipt” 7 by defendant of document “from which it may first be ascertained that the case is one 8 which is or has become removable”), as well as at least the potential for removal at a 9 later time, see Mattel, Inc. v. Bryant, 441 F. Supp. 2d 1081, 1089 (C.D. Cal. 2005) 10 (holding “[s]uccessive removals are not necessarily barred”; further holding “new 11 United States District Court Northern District of California 6 evidence permitted [defendant] to file[] a second notice of removal”), the Court finds 12 remand, at this time, is appropriate. The Court next turns to plaintiffs’ request for an 13 award of the attorneys’ fees they incurred in filing the Motion to Remand. 14 An “order remanding the case may require payment of just costs and any actual 15 expenses, including attorney fees, incurred as a result of the removal.” See 28 U.S.C. 16 § 1447(c). Although a showing of bad faith “is not necessary,” the Court nonetheless 17 finds an award of fees, in this instance, is not warranted. See Moore v. Permanente 18 Medical Group, Inc., 981 F.2d 443, 446 (9th Cir. 1992) (holding “[a]n award of attorney’s 19 fees pursuant to section 1447(c) . . . is within the discretion of the district court”). In 20 particular, plaintiffs have named over a dozen defendants to the instant action, Fluent has 21 engaged in extensive efforts to determine the citizenship of those defendants (see 22 Richard Decl. ¶¶ 3-34), and all parties appear to have been unaware of the law regarding 23 citizenship of LLCs, the issue having been raised in the first instance in the Court’s Order 24 25 26 27 28 4 Plaintiffs, as an additional ground for remand, point to defendant Sauphtware, Inc.’s untimely consent to Fluent’s removal. A procedural defect, however, can be “cured prior to entry of judgment” and “does not warrant . . . remand of the matter to state court.” See Destfino v. Reiswig, 630 F.3d 952, 956-57 (9th Cir. 2011) (internal quotation and citation omitted) (holding district court “may allow the removing defendants to cure the defect by obtaining joinder of all defendants prior to entry of judgment”). 3 1 2 to Show Cause. Accordingly, for the reasons set forth above, plaintiffs’ motion to remand is hereby 3 GRANTED, plaintiffs’ request for attorneys’ fees is hereby DENIED, and the instant 4 action is hereby REMANDED to the California Superior Court for the County of San 5 Francisco. 6 The Clerk shall close the file. 7 8 IT IS SO ORDERED. 9 10 Dated: June 8, 2017 MAXINE M. CHESNEY United States District Judge United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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