Derosier v. Global Hawk Insurance Company (RRG)

Filing 17

ORDER by Judge Kandis A. Westmore granting in part and denying in part Plaintiff's 7 Motion to Remand and for Attorney's Fees. The action is remanded to Alameda County Superior Court. The request for attorney's fees is denied.(kawlc1, COURT STAFF) (Filed on 11/23/2016)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

BRITTNEY DEROSIER,

Case No. 4:16-cv-06069-KAW

Plaintiff,
8
v.
9
10

GLOBAL HAWK INSURANCE
COMPANY (RRG),

Re: Dkt. No. 7

Defendant.

11
United States District Court
Northern District of California

ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S
MOTION TO REMAND AND FOR
ATTORNEY'S FEES

12
Plaintiff Brittney Derosier filed this case against Defendant Global Hawk Insurance

13
14

Company (RRG) in Alameda County Superior Court on October 11, 2016. Defendant removed

15

the case to federal court on October 20, 2016. On October 25, 2016, Plaintiff filed a motion to

16

remand the case to state court and requested that she be awarded attorney’s fees. (Pl.’s Mot., Dkt.

17

No. 7.)

18

Upon review of the moving papers, the Court finds this matter suitable for resolution

19

without oral argument pursuant to Civil Local Rule 7-1(b), and finds that Defendant is a citizen of

20

Vermont and California for diversity purposes. Therefore, Plaintiff’s motion to remand and

21

request for an award of attorney’s fees is GRANTED IN PART AND DENIED IN PART, and the

22

case is remanded to Alameda County Superior Court.

23

I.

LEGAL STANDARD

24

District courts have jurisdiction in civil actions where there is complete diversity of

25

citizenship among the parties and the amount in controversy exceeds $75,000, exclusive of interest

26

and costs. 28 U.S.C. § 1332(a). There is a “strong presumption against removal jurisdiction.”

27

Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992). This principle dictates that the removal

28

statute be “strictly construed against removal jurisdiction.” Id.

Upon remand, the court may “require payment of just costs and any actual expenses,

1
2

including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c).
II.

3

DISCUSSION

Plaintiff maintains that this case should be remanded to state court on the grounds that

4
5

Defendant is a citizen of California for diversity purposes, because it maintains its principal place

6

of business in Livermore, California. (Pl.’s Mot., Dkt. No. 7 at 2.)1 This case involves an attempt

7

to enforce a judgment against an insured party, and the insured is not named. An “insurer shall be

8

deemed a citizen of—(A) every State and foreign state of which the insured is a citizen; (B) every

9

State and foreign state by which the insurer has been incorporated; and (C) the State or foreign
state where the insurer has its principal place of business.” 28 U.S.C. § 1332(c)(1).

11
United States District Court
Northern District of California

10

The United States Supreme Court has determined
that “principal place of business” is best read as referring to the
place where a corporation's officers direct, control, and coordinate
the corporation's activities. It is the place that Courts of Appeals
have called the corporation's “nerve center.” And in practice it
should normally be the place where the corporation maintains its
headquarters—provided that the headquarters is the actual center of
direction, control, and coordination, i.e., the “nerve center,” and not
simply an office where the corporation holds its board meetings (for
example, attended by directors and officers who have traveled there
for the occasion).

12
13
14
15
16
17

...

18

A corporation's “nerve center,” usually its main headquarters, is a
single place. The public often (though not always) considers it the
corporation's main place of business. And it is a place within a State.

19
20

Hertz Corp. v. Friend, 559 U.S. 77, 93, 130 S. Ct. 1181, 1192-93, 175 L. Ed. 2d 1029 (2010).

21

“The burden of persuasion for establishing diversity jurisdiction, of course, remains on the party

22

asserting it.” Id. at 96. Thus, Defendant bears the burden of showing that its principal place of

23

business is not located in California.

24

///

25
26
27
28

1

In her reply, Plaintiff claims that Defendant stipulates to remand. (Pl.’s Reply at 1-2.) The
Court, however, has seen no evidence to support this agreement, as Defendant did not agree to
remand in its opposition nor concede that its principal place of business is in Livermore,
California in its supplemental brief. Therefore, the Court will assume, for the purposes of this
motion, that Defendant has not agreed to a voluntary remand of this case to state court.
2

1

A.

Motion to Remand

2

In opposition, Defendant argues that it is only a citizen of Vermont, where it is

3

incorporated, and that it transacts its business through a management general agency agreement

4

with Global Century Insurance Brokers, Inc., which is located in Vermont. (Def.’s Opp’n, Dkt.

5

No. 11; Def.’s Suppl. Br., Dkt. No. 14 at 2.)

6

In support of the motion to remand, Plaintiff, however, provided ample evidence to
establish that Defendant’s principal place of business is located in Livermore, California. First,

8

Defendant’s website lists its address for contact purposes as 2575 Collier Canyon Road,

9

Livermore, California 94551 and provides two phone numbers with (925) area codes—the area

10

code in which Livermore, California is located. (Decl. of Donald P. Bingham, “Bingham Decl.,”

11
United States District Court
Northern District of California

7

Dkt. No. 7-1 ¶¶ 11-12, Ex. C.) Second, Jasbir Singh Thandi is Global Hawk’s CEO, President,

12

and Founder. (Bingham Decl. ¶ 12.) A search of Thandi on the California Insurance

13

Commissioner’s website for licensing information produced a record pertaining to Thandi, which

14

stated that he is doing business as Thandi Insurance Brokerage at the same Livermore, California

15

business address as Global Hawk. (Bingham Decl. ¶ 13, Ex. D.) Third, an application for

16

Commercial Vehicle Liability Insurance from Defendant’s website provided, on page four, states

17

that “Applicant agrees upon approval of the application, the Company will bind coverage at the

18

home office in Alameda County.” (Bingham Decl. ¶ 14, Ex. E at 4.) While no single piece of

19

evidence is determinative, taken together, it appears that Global Hawk’s principal place of

20

business is located in Livermore, California, as their home office is there, the two officers are

21

California residents, and the insurance policies are bound there.

22

In light of this information, and Defendant’s failure to acknowledge, let alone rebut, the

23

evidence in its opposition, the Court ordered Defendant to file a supplemental brief “addressing

24

where its principal place of business is located, which shall include where the corporate

25

headquarters is located, where the board and high level officers are located, where decisions are

26

made, and where the employees are located.” (Dkt. No. 13.) Defendant’s supplemental brief,

27

however, was nonresponsive. Nowhere did Defendant affirmatively state where its principal place

28

of business was located, and instead claimed that while the two officers are residents of California,
3

1

“the functions they perform are directed to Vermont and transpire and occur in Vermont.” (Def.’s

2

Suppl. Br. at 2.) Furthermore, the fact that shareholder meetings occur via telephone on calls that

3

originate in Vermont is certainly not dispositive, particularly when the implication is that the two

4

officers are located in California. (See Decl. of Sandeep S. Sahota, Dkt. No. 14 ¶ 5.) Also, that an

5

annual board of directors meeting, at which a quorum of directors must be physically present in

6

Vermont, is similarly not determinative of a principal place of business. Id. at ¶ 6. Indeed, the

7

Supreme Court has found that a “headquarters” where a corporation holds its board meetings, and

8

which requires directors and officers to travel for the occasion, is not the principal place of

9

business when the nerve center is elsewhere. Hertz, 559 U.S. at 93.

10

In light of the foregoing, Defendant has failed to meet its burden to show that its principal

United States District Court
Northern District of California

11

place of business is not in Livermore, California. See Hertz, 559 U.S. at 96. Therefore, Defendant

12

is a resident of California for diversity purposes. Under the forum defendant rule, “a civil action

13

otherwise removable solely on the basis of [diversity jurisdiction] may not be removed if any of

14

the parties in interest properly joined and served as defendants is a citizen of the State in which

15

such action is brought.” 28 U.S.C. § 1441(b). Thus, the forum defendant rule applies, and the

16

action is not removable on the basis of diversity jurisdiction. See 28 U.S.C. § 1441(b).
Request for Attorney’s Fees

17

B.

18

While Defendant could not satisfy its burden to establish diversity of citizenship, the Court

19

declines to award attorney’s fees on remand. Accordingly, Plaintiff’s request for attorney’s fees is

20

DENIED.

21
22

III.

CONCLUSION

For the reasons set forth above, Plaintiff’s motion to remand the case to state court and for

23

attorney’s fees is GRANTED IN PART AND DENIED IN PART. Specifically, the request to

24

REMAND is granted, and the case is remanded to Alameda County Superior Court. The request

25

for attorney’s fees is DENIED.

26
27

IT IS SO ORDERED.
Dated: November 23, 2016

__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

28
4