Preston et al v. Chula Vista Center, LP et al

Filing 5

ORDER Remanding Action for Lack of Subject Matter Jurisdiction. Signed by Judge Cathy Ann Bencivengo on 1/11/2018.(rmc)(Certified copy mailed to Superior Court)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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E.P, a minor child, by and through his
Guardian ad litem, EMMENLE
PRESTON, Sr.; and MAJEL WILLIAMS,
an individual,

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Plaintiffs,

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ORDER REMANDING ACTION FOR
LACK OF SUBJECT MATTER
JURISDICTION

v.

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Case No.: 3:18-cv-0006-CAB-(JMA)

CHULA VISTA CENTER, L.P.; ROUSE
PROPERTIES, LLC; KONE, INC.; and
DOES1-50, inclusive,

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Defendants.

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On July 10, 2017, Plaintiffs commenced this personal injury suit against Defendants

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in the San Diego Superior Court. [Doc. No. 1-2 at 6-25.] On January 2, 2018, Defendants

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removed this action to federal court on the basis of diversity jurisdiction. [Doc. No. 1.]

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On January 3, 2018, this Court ordered Defendants to show cause on or before

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January 10, 2018, why this matter should not be remanded for lack of subject matter

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jurisdiction. [Doc. No. 2.] Specifically, the Court was concerned whether there is complete

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diversity among the parties. Rather than respond to the order to show cause, Defendants

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filed a Motion to Request Additional Time to Submit Briefing Responsive to the OSC re

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Jurisdiction [Doc. No. 4] on January 10, 2018. But, the Court declines to grant the

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extension because Defendants should have ascertained the citizenship of all of the

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3:18-cv-0006-CAB-(JMA)

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members/partners prior to filing the notice of removal proffering the diversity of the

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parties.

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By failing to respond to the Order to Show Cause Defendants have not assuaged the

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Court’s concerns regarding jurisdiction.

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jurisdiction, Defendants must demonstrate there is complete diversity of citizenship

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between the parties and that the amount in controversy exceeds $75,000. Caterpillar Inc.

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v. Lewis, 519 U.S. 61, 68 (1996). To meet their burden to establish complete diversity,

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Defendants must allege the actual citizenship of all of its members/partners. Provincial

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Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). Here, the

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vague assurances provided that all entities related to Defendants are Delaware entities with

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their principal places of business in New York, NY are not sufficient. Furthermore, the

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myriad of reasons1 provided by Defendants for needing more time to comply with the OSC

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is evidence that Defendants have not determined the existence of complete diversity

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between the parties. Thus, although being given the opportunity to do so, Defendants have

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not met their burden of demonstrating there is complete diversity of citizenship.

In order to invoke this Court’s diversity

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Because Defendants fail to establish diversity jurisdiction as required by 28 U.S.C.

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§ 1332 and 1441 removal was improper and the Court sua sponte REMANDS this action

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back to the San Diego Superior Court for lack of subject matter jurisdiction. See 28 U.S.C

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§ 1447(c) (“[i]f at any time before final judgment it appears that the district court lacks

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subject matter jurisdiction, the case shall be remanded.”). See also Gaus v. Miles, Inc., 980

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F.2d 564, 566 (9th Cir. 1992) (the removal statute is strictly construed, and any doubt about

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the right of removal requires resolution in favor of remand); Polo v. Innoventions Int’l.,

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LLC, 833 F.3d 1193, 1197 (9th Cir. 2016) (if federal jurisdiction is absent from the

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Defendants request an extension to respond to the OSC because (1) they need to contact other
organizations not parties to this action; (2) one of the Defendants has undergone a corporate reorganization
and relocation; (3) they are reluctant to disclose “confidential business information or proprietary data or
identities of members/partners without some measure of protection;” and (4) “while Defendants
understand the Court must be satisfied there is complete diversity, Defendants should not be required to
disclose the entire hierarchy of their corporate formation and operations.” [Doc. No. 4 at 3.]
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3:18-cv-0006-CAB-(JMA)

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commencement of a case, [a case] is not “properly removed” – and therefore need not “stay

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[] removed.”) (internal quotation marks and citation omitted). Additionally, the Court

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DENIES Defendants’ motion for extension of time. [Doc. No. 4.]

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It is SO ORDERED.
Dated: January 11, 2018

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