Howard Kleiman v. Sientra, Inc. et al

Filing 35

ORDER granting 23 Motion to Remand. The hearing scheduled for 5/26/2016 is VACATED. The Clerk shall remand these cases to San Mateo County Superior Court and close the files. Signed by Judge Edward J. Davila on 5/20/2016.(ejdlc1S, COURT STAFF) (Filed on 5/20/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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OKLAHOMA POLICE PENSION &
RETIREMENT SYSTEM,

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Plaintiff,

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v.

United States District Court
Northern District of California

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Defendants.
ANGELO ALBANO, et al.,

ORDER GRANTING PLAINTIFFS’
MOTIONS TO REMAND

SIENTRA, INC., et al.,

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Case No. 5:15-cv-05549-EJD

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Case No. 5:15-cv-05550-EJD

Plaintiff,
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v.
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SIENTRA, INC., et al.,
Defendants.

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HOWARD KLEIMAN,

Case No. 5:15-cv-05553-EJD

Plaintiff,
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v.
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SIENTRA, INC., et al.,
Defendants.

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In Young v. Pacific Biosciences of California, Inc., No. 5:11-cv-05668-EJD, 2012 U.S.

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Dist. LEXIS 33695, 2012 WL 851509 (N.D. Cal. Mar. 13, 2012), this court held that purported

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class actions asserting only violations §§ 11, 12(a)(2) and 15 of the Securities Act of 1933, 15

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U.S.C. §§ 77a et. seq. (the “1933 Act”), may not be removed from state court for two principal

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reasons. First, after looking to the United States Supreme Court’s decision in Kircher v. Putnam

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1
Case No.: 5:15-cv-05549-EJD
ORDER GRANTING PLAINTIFFS’ MOTIONS TO REMAND

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Funds Trust, 547 U.S. 633 (2006), the court concluded that actions for violations of the 1933 Act

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are not “covered class actions” under 15 U.S.C. § 77p(b) and are therefore not rendered removable

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by 15 U.S.C. § 77p(c). Second, the court found based on the Ninth Circuit’s decision in Luther v.

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Countrywide Home Loans Servicing, LP, 533 F.3d 1031 (9th Cir. 2008), that such actions are in

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fact prohibited from removal under 15 U.S.C. § 77v.

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Citing to Young and the several subsequent opinions from this district that agree with it,

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each of the plaintiffs move to remand their respective actions for violations of the 1933 Act to San

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Mateo County Superior Court. Defendants oppose, but provide no persuasive basis for this court

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to revisit its decision from Young.

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United States District Court
Northern District of California

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Accordingly, the court finds that the cases captioned above “are not the type of covered
class actions capable of being removed pursuant to § 77p, and indeed are prohibited from removal
pursuant to § 77v.” Young, 2012 U.S. Dist. LEXIS 33695, at *11. As a consequence, Defendants
have not satisfied their burden to convincingly establish federal jurisdiction. See Gaus v. Miles,
Inc., 980 F.2d 564, 566 (9th Cir. 1992) (“The ‘strong presumption’ against removal jurisdiction
means that the defendant always has the burden of establishing that removal is proper.”); see also
Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (“Where doubt
regarding the right to removal exists, a case should be remanded to state court.”).
Plaintiffs’ motions to remand are therefore GRANTED, and the hearing scheduled for May

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26, 2016, is VACATED. The Clerk shall remand these cases to San Mateo County Superior Court
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and close the files.
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IT IS SO ORDERED.
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Dated: May 20, 2016
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______________________________________
EDWARD J. DAVILA
United States District Judge

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Case No.: 5:15-cv-05549-EJD
ORDER GRANTING PLAINTIFFS’ MOTIONS TO REMAND