Tourigny v. Symantec Corporation
Filing
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ORDER GRANTING MOTION TO REMAND Re: Dkt. No. 9 . The Court orders the case remanded back to the Superior Court of California, County of Santa Clara. Signed by Judge Nathanael Cousins on 4/24/2015. (lmh, COURT STAFF) (Filed on 4/24/2015)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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PAUL TOURIGNY,
United States District Court
Northern District of California
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Case No. 15-cv-00438 NC
Plaintiff,
ORDER GRANTING MOTION TO
REMAND
v.
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SYMANTEC CORPORATION,
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Re: Dkt. No. 9
Defendant.
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Before the Court is Tourigny’s motion to remand this action to state court. Because
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the Court agrees that the plain language and policy behind the local defendant rule bars
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Symantec from removing the case, the Court GRANTS Tourigny’s motion to remand.
In November 2014, plaintiff Paul Tourigny sued Symantec Corporation in
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California Superior Court for age discrimination in violation of the California Fair
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Employment and Housing Act. In January 2015, after Tourigny notified Symantec of an
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error in the initial service of process, Symantec removed the case to federal court on the
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basis of diversity jurisdiction. However, removal on the basis of diversity jurisdiction is
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procedurally flawed when the defendant is “local,” meaning a citizen of the state in which
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it is sued. Symantec argues that removal is nonetheless proper because a local defendant is
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only barred from removing to federal court when it has been served.
All parties have consented to the jurisdiction of a magistrate judge. Dkt. Nos. 6, 10.
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Case No.: 15-cv-00438-NC
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I.
LEGAL STANDARD
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Federal courts are courts of limited jurisdiction and are presumptively without
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jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
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Removal of a state court action to federal court is appropriate only if the federal court
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would have had original subject matter jurisdiction over the suit. See 28 U.S.C. § 1441(a).
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A federal district court must remand a removed case to state court “[i]f at any time before
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the final judgment it appears that the district court lacks subject matter jurisdiction.” Id.
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In deciding whether removal was proper, courts strictly construe the removal statute
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against finding jurisdiction, and the party invoking federal jurisdiction bears the burden of
establishing that removal was appropriate. Provincial Gov’t of Marinduque v. Placer
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United States District Court
Northern District of California
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Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009) (citations omitted). Where doubt exists
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regarding the right to remove an action, it should be resolved in favor of remand to state
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court. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003).
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II.
DISCUSSION
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Tourigny argues that remand is proper because (1) Symantec is barred from
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removing to federal court because it is a local defendant, and (2) in the alternative,
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Symantec was served prior to removal. Dkt. No. 9. The Court declines to reach
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Tourigny’s second argument, finding that the local defendant rule bars removal to this
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Court.
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Generally, a defendant to an action in state court has 30 days from service of the
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complaint to remove a case to federal court. 28 U.S.C. § 1446(b). In most cases, original
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federal subject matter jurisdiction may be premised on two grounds: (1) diversity
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jurisdiction, or (2) federal question jurisdiction. District courts have diversity jurisdiction
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over “all civil actions where the matter in controversy exceeds the sum or value of
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$75,000, exclusive of interest and costs,” and the action is between citizens of different
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states. 28 U.S.C. § 1332. A corporation is a citizen of the states in which it is incorporated
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and has its principal place of business. 28 U.S.C. § 1332(c)(1).
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Here, Symantec claims federal jurisdiction based on the diversity of the parties.
Case No.:15-cv-00438-NC
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Dkt. No. 1 at ¶ 7. Tourigny is a citizen of Massachusetts, and Symantec is a corporation,
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incorporated in Delaware with its principal place of business in California. Id. at ¶¶ 8, 9.
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Symantec states, and Tourigny does not challenge, that the amount in controversy exceeds
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$75,000. Id. at ¶ 10-12. Additionally, Tourigny’s claims are all based on state law, and
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not federal law. Dkt. No. 1. Thus, this Court has subject matter jurisdiction because the
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parties are properly diverse and the amount in controversy requirement has been met.
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However, Congress created an exception for diversity jurisdiction when the
defendant is “local,” or a citizen of the state in which he was sued. A local defendant
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cannot remove the case to federal court. 28 U.S.C. § 1441(b)(2). Specifically, this “local
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defendant rule” provides that a case may not be removed once “any of the defendants are
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United States District Court
Northern District of California
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joined and served.” Id. The rule is a procedural limitation on removal, not a jurisdictional
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one; therefore, a plaintiff seeking remand of the case must make such a motion within
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thirty days of removal. Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 939 (9th Cir.
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2006); 28 U.S.C. § 1447(c). Here, Symantec is a local defendant, as a citizen of
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California, and Tourigny timely filed a motion for removal. Dkt. No. 9.
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The question presented to the Court is whether a local defendant can remove a case
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to federal court based on diversity jurisdiction prior to service. Symantec argues that the
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local defendant rule only bars removal once a defendant has been served in state court.
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Dkt. No. 12 at 4. Reading the rule literally, Symantec argues, the statute only applies
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when all defendants are joined and served. Id. Symantec cites a number of district court
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cases in this district and others that have taken a literal approach to the text of the local
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defendant rule and find that a defendant can remove prior to service. Id. at 6. Tourigny
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argues that the same rule is intended to prevent local defendants from removing the case to
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federal court, regardless of whether they have been served. Dkt. No. 9 at 6. Tourigny
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points to the policy of protecting a plaintiff’s choice of forum, and the general policy
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discouraging removal of cases to federal court. Id. Tourigny also cites district court cases
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supporting his reading of the removal statute. Id. at 9-12.
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This Court is presented with a legal question which has yet to be decided by any
Case No.:15-cv-00438-NC
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circuit courts. District courts are divided in their interpretation of the local defendant rule.1
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Generally, the district courts either (1) read the rule literally and conclude that removal
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prior to service is proper, or (2) find that such literal reading creates an absurd result that
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conflicts with the statute’s purpose to bar local defendants from removal. Compare
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Holstrom v. Harad, 2005 WL 1950672 (N.D. Ill. Aug. 11, 2001), with Frick v. Novartis
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Pharms. Corp., 2006 WL 454360 (D.N.J. Feb. 23, 2006). However, nearly all courts that
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examine the statute do so in the context of multiple defendants. See Allen v.
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Glaxosmithkline PLC, 2008 WL 2247067 at *5 (E.D. Penn. May 30, 2008). This Court
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finds that under either approach, the result is the same and requires remand. From both a
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literal reading and a policy-based approach, the Court concludes that the local defendant
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United States District Court
Northern District of California
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rule does not permit a single local defendant to remove to federal court in a diversity case.
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A.
Plain Meaning
When interpreting a statute, courts begin with the plain meaning of the statute,
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construed “so as to give effect to the intent of Congress.” United States v. Am. Trucking
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Ass’ns, 310 U.S. 534, 542 (1940). The local defendant rule prohibits removal “if any of
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the parties in interest properly joined and served as defendants is a citizen of the State in
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which such action is brought.” 28 U.S.C. § 1441(b)(2). A plain reading of the language
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suggests that the “joined and served” language only applies to multiple defendants.
This Court agrees with the reasoning of Judge Baylson, who approached similar
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facts in the Eastern District of Pennsylvania. Allen, 2008 WL 2247067. Considering only
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the plain meaning, Judge Baylson concluded, “[b]ecause the operative phrase is ‘joined
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and served’ and not ‘named and served’ or simply ‘served,’ the statute contemplates a
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situation in which one defendant is joined to another defendant, presumably an in-state
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defendant joined to an out-of state defendant. The ‘joined and served’ language therefore
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For a thorough discussion of the varying district court interpretations of 28 U.S.C. § 1441(b)(2), see Jordan Bailey,
Giving State Courts the Ol' Slip: Should A Defendant Be Allowed to Remove an Otherwise Irremovable Case to
Federal Court Solely Because Removal Was Made Before Any Defendant Is Served?, 42 Tex. Tech L. Rev. 181, 182
(2009); Matthew Curry, Plaintiff’s Motion To Remand Denied: Arguing for Pre-Service Removal Under the Plain
Language of the Forum-Defendant Rule, 58 Clev. St. L. Rev 907 (2010).
Case No.:15-cv-00438-NC
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can only apply where there are multiple, named defendants.” Id. at *5. Symantec urges
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the Court not to ignore the phrase “and served” in its interpretation of the rule. Dkt. No.
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12 at 4. The Court agrees and finds that the phrase should be read in its entirety, also
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giving significance to the preceding word “joined.” Plainly read, the local defendant rule’s
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“exception” for removal prior to service can only be considered when plaintiff sues
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multiple defendants.
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This interpretation of the rule does not contradict the cases in this district that
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conclude such an exception does exist. The cases cited by defendants and referred to by
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judges in this district all involve multiple defendants, often including several non-local
defendants. Sherman v. Haynes & Boone, No. 14-cv-01064 PSG, 2014 WL 4211118, at
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United States District Court
Northern District of California
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*1 (N.D. Cal. Aug. 22, 2014) (three defendants); Regal Stone Ltd. v. Longs Drugs Stores
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California LLC, 881 F. Supp. 2d 1123, 1124-1129 (N.D. Cal. 2012) (three defendants);
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Carreon v. Alza Corp., 09-cv-5623 RS, 2010 WL 539392 at *1 (N.D. Cal. Feb. 9, 2010)
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(two defendants); City of Ann Arbor Employee’s Retirement Sys. v. Gecht, 06-cv-7453
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EMC, 2007 WL 760568 at *7-8 (N.D. Cal. Mar. 7, 2007) (multiple defendants); Waldon v.
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Novartis Pharms. Corp., 07-cv-1988 MJJ, 2007 WL 1747128 at *1-3 (N.D. Cal. June 18,
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2007) (three defendants).
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This case is factually distinct because Symantec is the sole defendant.
B.
Purpose of the Statute
In addition, finding that a local defendant is barred from removal regardless of
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service is consistent with the purpose of the removal statute. Some district courts have
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found that a literal reading of the local defendant rule produces absurd results, given the
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statute’s policy. See Swindell-Filiaggi v. CSX Corp., 922 F. Supp. 2d 514, 521 (E.D. Penn.
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2013). Here, reading the local defendant rule to bar removal of an action by a single local
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defendant does not produce an absurd result.
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Generally, “diversity jurisdiction is intended to protect out-of-state defendants from
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possible prejudices in state court.” Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 940
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(9th Cir. 2006). However, “[t]he need for such protection is absent . . . where the
Case No.:15-cv-00438-NC
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defendant is a citizen of the state in which the case is brought.” Id. Absent a concern of
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prejudice to the defendant, federal courts should have “[d]ue regard for the rightful
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independence of state governments” to “provide for the determination of controversies in
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their courts.” Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941).
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Specifically, the local defendant rule’s “joined and served” exception exists to “prevent a
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plaintiff from blocking removal by joining as a defendant a resident party against whom it
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does not intend to proceed, and whom it does not even serve.” Stan Winston Creatures
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Inc. v. Toys “R” Us, Inc., 314 F. Supp. 2d 117, 181 (S.D.N.Y. 2003); Swindell-Filiaggi,
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922 F. Supp. 2d at 518.
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Here, Tourigny, a Massachusetts citizen, has sued Symantec in the defendant’s
United States District Court
Northern District of California
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home state. Because Symantec is local, there is no concern of prejudice against it in state
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court. Tourigny does not seek to join additional defendants to the action. The purpose of
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the local defendant rule is to prevent Symantec from removal, defeating Tourigny’s choice
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of forum. The Court does not agree with Symantec that it can avoid the local defendant
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rule by removing to federal court before being served. That reading of the statute is
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inconsistent with both the statute’s plain language and the policy of respecting state
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jurisdiction over state matters unless there is a risk of prejudice to the defendant.
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III. CONCLUSION
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Plaintiff’s motion to remand is GRANTED. The Court orders the case remanded
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back to the Superior Court of California, County of Santa Clara.
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IT IS SO ORDERED.
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Dated: April 24, 2015
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_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge
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Case No.:15-cv-00438-NC
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