Gutierrez Diaz v. Ford Motor Company

Filing 20

ORDER by Judge Jacqueline Scott Corley denying #13 Motion to Remand. (ahm, COURT STAFF) (Filed on 5/18/2023)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARIO GUTIERREZ DIAZ,

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Plaintiff,

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ORDER RE: MOTION TO REMAND

v.

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Re: Dkt. No. 13
FORD MOTOR COMPANY,

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Defendant.

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United States District Court
Northern District of California

Case No. 23-cv-01506-JSC

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Plaintiff filed suit in state court with lemon law claims under California’s Song-Beverly

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Act related to his Ford vehicle. (Dkt. No. 1-2.)1 Defendant removed to this Court. (Dkt. No. 1.)

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Before the Court is Plaintiff’s motion to remand. (Dkt. No. 13.) After carefully considering the

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motion, opposition, and reply, the Court concludes oral argument is unnecessary, see N.D. Cal.

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Civ. L.R. 7-1(b), VACATES the May 31, 2023 hearing, and DENIES the motion.
DISCUSSION

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Plaintiff challenges only the timeliness of removal, which is “a procedural defect and not

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jurisdictional.” Maniar v. F.D.I.C., 979 F.2d 782, 784 (9th Cir. 1992). Federal subject matter

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jurisdiction exists here because the parties are diverse and the notice of removal includes an

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“unchallenged, plausible assertion” that “the amount in controversy exceeds the jurisdictional

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threshold” of $75,000. Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1195, 1197 (9th Cir. 2015)

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(cleaned up); see 28 U.S.C. §§ 1332(a), (c); Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010)

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(“Courts have an independent obligation to determine whether subject-matter jurisdiction exists,

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even when no party challenges it.”). (Dkt. No. 1-2 ¶¶ 2–3; see Dkt. No. 1-1 ¶¶ 7–8, 11–24; Dkt.

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Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the
ECF-generated page numbers at the top of the documents.
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No. 1-4.)

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Generally, a notice of removal must be filed “within 30 days after the receipt by the

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defendant . . . of the initial pleading.” 28 U.S.C. § 1446(b)(1). But “if the case stated by the initial

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pleading is not removable, a notice of removal may be filed within thirty days after receipt by the

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defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other

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paper from which it may first be ascertained that the case is one which is or has become

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removable.” Id. § 1446(b)(3); see also id. § 1446(c)(3). “[A]n amended pleading, motion, order,

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or other paper must make a ground for removal unequivocally clear and certain before the removal

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clock begins under the second pathway of § 1446(b)(3).” Dietrich v. Boeing Co., 14 F.4th 1089,

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1095 (9th Cir. 2021).
Defendant removed on March 30, 2023. (Dkt. No. 1.) The relevant date is February 28,

United States District Court
Northern District of California

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2023, 30 days prior. On that date, Defendant received a copy of the vehicle sales contract alleged

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in the complaint. (Dkt. No. 1-1 ¶¶ 7–8; Dkt. No. 1-3; Dkt. No. 1-4.) “[N]o ground for removal

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was unequivocally clear and certain until” Defendant received the contract, Dietrich, 14 F.4th at

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1095, because Plaintiff’s complaint did not allege the sales price or any dollar amount at issue,

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(see Dkt. No. 1-2). Plaintiff’s motion for remand does not identify some other “pleading, motion,

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order, or other paper” from which Defendant could have known the case was removable on an

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earlier date, nor does it argue that some other ground for removal appeared on the face of the

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complaint. 28 U.S.C. § 1446(b)(3). Accordingly, removal was timely. See Dietrich, 14 F.4th at

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1095.
CONCLUSION

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Plaintiff’s motion for remand is DENIED.

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This Order disposes of Docket No. 13.

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IT IS SO ORDERED.

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Dated: May 18, 2023

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JACQUELINE SCOTT CORLEY
United States District Judge

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