Icard v. Ecolab Inc.

Filing 33

ORDER GRANTING SECOND MOTION TO REMAND AND VACATING HEARING DATE by Judge Phyllis J. Hamilton granting 31 Motion for Leave to File; granting 17 Motion to Remand (nah, COURT STAFF) (Filed on 9/30/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES ICARD,
Plaintiff,

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v.
ECOLAB, INC., et al.,

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For the Northern District of California

United States District Court

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No. C 11-3258 PJH
ORDER GRANTING SECOND
MOTION TO REMAND AND
VACATING HEARING DATE

Defendants.
_______________________________/

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Before this court is plaintiff’s motion to remand this matter to San Francisco County

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Superior Court, it having been removed a second time by defendant. See C 10-0410 PJH.

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The court GRANTS defendant motion for leave to file supplemental material in support of

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its opposition to the motion to remand. Doc. no. 31. Having carefully read the parties’

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papers and considered the relevant legal authority, the court GRANTS the motion and

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VACATES the October 5, 2011 hearing for the following reason.

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Remand may be ordered for either lack of subject matter jurisdiction or for “any

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defect in removal procedure.” 28 U.S.C. § 1447(c). Generally, there is a strong

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presumption in favor of remand. Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403-

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04 (9th Cir. 1996). The removal statutes are construed restrictively, and doubts about

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removability are resolved in favor of remanding the case to state court. Shamrock Oil &

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Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Guas v. Miles, Inc., 980 F.2d 564 (9th

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Cir. 1992). The party seeking to invoke the jurisdiction of the court – i.e., defendant in this

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case – has the burden of establishing that removal jurisdiction exists. Scott v. Breeland,

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792 F.2d 925, 927 (9th Cir. 1986).

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Given the multiple factual disputes that exist with respect to the likely size of the

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putative class and the amount of damages each member suffered, defendant has not

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established the amount in controversy by a preponderance of the evidence. See

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Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699 (9th Cir. 2007). Consequently, the

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court finds that defendant has not sustained its burden of showing that removal was proper.

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The case is REMANDED to the Superior Court of San Francisco County.

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IT IS SO ORDERED.

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Dated: September 30, 2011
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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