Wagner v. Spire Vision LLC et al

Filing 69

ORDER by Judge Yvonne Gonzalez Rogers granting in part and denying in part 14 Motion to Remand; Denying Request for Attorneys Fees. Clerk is directed to Remand this case to Sonoma County Superior Court. (fs, COURT STAFF) (Filed on 3/8/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHRISTOPHER WAGNER,

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United States District Court
Northern District of California

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Plaintiff,
vs.

Case No.: 13-00054 YGR
ORDER GRANTING IN PART PLAINTIFF’S
MOTION TO REMAND; DENYING REQUEST
FOR ATTORNEYS’ FEES

SPIRE VISION LLC et al.,
Defendants.

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Plaintiff Christopher Wagner filed this action in the Sonoma County Superior Court

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alleging misrepresentations in e-mail spammed by the Defendants in violation of Cal. Bus. & Prof.

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Code § 17529.5 and § 17538.5. Defendant Spire Vision removed this action invoking this Court’s

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diversity jurisdiction.

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Plaintiff has filed a Motion to Remand and Request for Attorneys’ Fees on the grounds that

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Defendant Spire Vision failed to join all properly joined and served defendants in its Notice of

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Removal, failed to demonstrate complete diversity, and failed to demonstrate that the amount in

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controversy is likely to exceed $75,000.

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Having carefully considered the papers submitted and the pleadings in this action, and for

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the reasons set forth below, the Court hereby GRANTS IN PART the Motion to Remand to the extent

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the motion seeks remand but DENIES the request for attorneys’ fees.

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Defendants have failed to allege adequately the citizenship of all the parties to this action.

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Limited liability companies, or LLCs, are like partnerships in that they are a citizen of every state

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where its owners and members are citizens. Johnson v. Columbia Properties Anchorage, LP, 437

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F.3d 894, 899 (9th Cir. 2006). The notice of removal alleges each LLC’s place of incorporation

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and principal place of business, which is the test for determining citizenship of a corporation, but is

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inapplicable to LLCs. This failure alone is enough to support remand. See Solberg, 2011 WL

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1295940, at *3-4 (finding failure to allege facts regarding citizenship of an LLC gave defendant no

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basis for removal); see also Kanter v. Warner-Lambert Co., 265 F.3d 853, 857-58 (9th Cir. 2001)

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(failure to specify state citizenship is fatal to an assertion of diversity jurisdiction).

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Even if Defendants had properly alleged citizenship of all the parties, there is not complete

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diversity of citizenship because at least one defendant is a citizen of California, the same state of

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citizenship as Plaintiff Wagner. The Court finds no improper joinder in this case. Therefore, this

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Court finds that it does not have diversity jurisdiction.

United States District Court
Northern District of California

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Furthermore, Defendants have not joined, or obtained consent from, all properly joined and

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served defendants in the removal, as required by the rule of unanimity. 28 U.S.C. § 1446(b)(2)(A).

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Plaintiff’s Motion for Remand is GRANTED. Plaintiff’s request for attorneys’ fees and costs

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is DENIED.

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The Clerk is DIRECTED to REMAND this case to Sonoma County Superior Court.

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IT IS SO ORDERED.

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Dated: March 8, 2013
_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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