Vossoughi v. AIG Property Casualty Company et al

Filing 13

ORDER Discharging Order to Show Cause (ECF No. 6 ). Signed by Judge Barry Ted Moskowitz on 4/21/2017.(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MEHDI VOSSOUGHI,

Case No.: 17cv0247 BTM BGS
Plaintiff,

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v.

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AIG PROPERTY CASUALTY
COMPANY, NATIONAL UNION
FIRE INSURANCE COMPANY OF
PITTSBURGH PENNSYLVANIA,
and DOES 1 through 20, inclusive,

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ORDER DISCHARGING ORDER
TO SHOW CAUSE
[ECF NO. 6]

Defendants.

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On February 27, 2017, the Court issued an order requiring defendant

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National Union Fire Insurance Company of Pittsburgh Pennsylvania (“National

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Union”) to Show Cause why this action should not be remanded to state court

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(the “OSC”) for failure to state in its notice of removal whether defendant AIG

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Property Casualty Company (“AIG”) had been served, and if so, whether it joined

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in or consented to removal. (ECF No. 6.) For the reasons below, the OSC will

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be discharged.

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On February 8, 2017, National Union removed this insurance bad faith
action from San Diego Superior Court on the assertion of diversity jurisdiction
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17cv0247 BTM BGS

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pursuant to 28 U.S.C. § 1441(b). However, its notice of removal failed to

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address whether AIG has been served, and if so, whether it joined in or

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consented to removal. Since all defendants in the state court action must join the

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petition for removal, see, e.g., Hewitt v. City of Stanton, 798 F.2d 1230, 1233 (9th

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Cir. 1986), the Court issued an OSC requiring National Union to explain why AIG

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was omitted from the notice of removal.

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On March 6, 2017, National Union filed a timely response to the OSC.

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(ECF No. 7.) National Union stated that AIG was served with the summons and

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complaint on January 9, 2017, the same day as National Union; that AIG had, in

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fact, consented to removal; and that National Union’s failure to include AIG’s

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consent in the removal notice was an oversight. (ECF No. 7.) Also on March 6,

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2017, AIG filed a joinder in the notice of removal. (ECF No. 8.) AIG’s joinder

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indicates that at the time the action was removed on February 8, 2017, it was

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attempting to negotiate a dismissal, that it did actually consent to removal and

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National Union’s failure to address AIG’s consent in the removal notice was an

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oversight.

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The OSC gave Plaintiff until March 13, 2017, to file a responsive brief, but

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Plaintiff elected not to file a response, nor has Plaintiff moved to remand or

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otherwise objected to the Court’s exercise of removal jurisdiction over this action.

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As the Court indicated in its OSC, failure to join all properly served

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defendants in a removal petition renders the removal procedurally defective. See

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Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n.1 (9th Cir. 1988).

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However, non-jurisdictional procedural requirements for removal may be waived

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by the plaintiff. Kelton Arms Condominium Owners Assoc., Inc. v. Homestead

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Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003); Smith v. Mylan Inc., 761 F.3d

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1042, 1044-46 (9th Cir. 2014). If the plaintiff waives procedural defects in the

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removal process, the Court may not address them by remanding the action sua

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sponte. Smith, 761 F.3d. at 1046; 28 U.S.C. § 1447(c) (addressing post-removal
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17cv0247 BTM BGS

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authority to remand). Here, the plaintiff did not respond to the OSC, move to

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remand, or otherwise register any opposition to removal, and thus has “implicitly

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waived any procedural defect in removal.” Id. Therefore, the Court may not

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remand this action sua sponte on the basis of the procedural flaws in National

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Union’s notice of removal. Id.

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Also, “the district court may allow the removing defendants to cure the

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defect by obtaining joinder of all defendants prior to the entry of judgment.”

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Destfino v. Reiswig, 630 F.3d 952, 957 (9th Cir. 2011); see Soliman v. Phillip

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Morris Inc., 311 F.3d 966, 970 (9th Cir. 2002). Here, since Plaintiff does not

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object, the Court accepts AIG’s belated joinder as having cured the deficiency in

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National Union’s removal notice.

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Accordingly, the Order to Show Cause is DISCHARGED.

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IT IS SO ORDERED:

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Dated: April 21, 2017

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17cv0247 BTM BGS