Morse v. G4S Secure Solutions (USA), Inc. et al

Filing 13

ORDER Denying Motion to Remand [Doc. No. #4 ]. Signed by Judge Cathy Ann Bencivengo on 4/27/2021. (anh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SARAH MORSE, Case No.: 21-CV-413-CAB-BLM Plaintiff, 12 13 v. ORDER DENYING MOTION TO REMAND 14 G4S SECURE SOLUTIONS (USA), INC. and SONY INTERACTIVE ENTERTAINMENT LLC, [Doc. No. 4] 15 16 Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 This matter is before the Court on Plaintiff’s motion to remand. The motion is fully briefed, and the Court deems it suitable for submission without oral argument. Because Defendants have satisfied their burden to establish subject matter jurisdiction, the motion is denied. I. Background Plaintiff filed this lawsuit in San Diego County Superior Court on January 25, 2021. The substantive allegations in the original complaint are largely irrelevant to the instant motion. In short, Plaintiff alleges that she worked as a security officer for Defendants G4S Secure Solutions (USA), Inc. (“G4S”) and Sony Interactive Entertainment LLC (“SIE”) in San Diego, California. The complaint asserts a dozen claims under California state law, 1 21-CV-413-CAB-BLM 1 including several claims for discrimination, retaliation, and failure to accommodate on 2 account of disability, and several wage and hour claims. 3 On March 8, 2021, Defendants removed the complaint to this court based on 4 diversity jurisdiction under 28 U.S.C. § 1332. On March 15, 2021, Defendants filed a 5 motion to dismiss, in response to which Plaintiff filed an amended complaint. Defendants 6 have since answered the amended complaint. On April 1, 2021, Plaintiff filed the instant 7 motion to remand, arguing that Defendants failed to establish that SIE is diverse from 8 Plaintiff. 9 II. Legal Standards 10 “Federal courts are courts of limited jurisdiction. They possess only that power 11 authorized by Constitution and statute. . . .” Kokkonen v. Guardian Life Ins. Co. of Am., 12 511 U.S. 375, 377 (1994). It is “presume[d] that federal courts lack jurisdiction unless the 13 contrary appears affirmatively from the record.” Renne v. Geary, 501 U.S. 312, 316 (1991) 14 (internal quotation marks and citation omitted). 15 “The right of removal is entirely a creature of statute and a suit commenced in a state 16 court must remain there until cause is shown for its transfer under some act of Congress.” 17 Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 32 (2002) (internal quotation marks 18 and citation omitted). “The burden of establishing federal jurisdiction is upon the party 19 seeking removal . . . .” Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). 20 Moreover, courts must “strictly construe the removal statute against removal jurisdiction.” 21 Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Therefore, “[f]ederal jurisdiction 22 must be rejected if there is any doubt as to the right of removal in the first instance.” Id. 23 III. Discussion 24 Diversity jurisdiction exists when (1) opposing parties are citizens of different states, 25 and (2) the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). In her motion 26 to remand, Plaintiff does not dispute that the amount of controversy exceeds $75,000, or 27 28 2 21-CV-413-CAB-BLM 1 that Plaintiff is diverse in citizenship from G4S.1 She argues only that SIE is a citizen of 2 California and therefore not diverse. 3 There does not appear to be any dispute that Plaintiff is a citizen of California for 4 diversity purposes. Thus, the only issue before the Court is whether SIE is also a citizen 5 of California. SIE is a limited liability company (“LLC”). “For purposes of diversity 6 jurisdiction, a limited liability company ‘is a citizen of every state of which its 7 owners/members are citizens.’” 3123 SMB LLC v. Horn, 880 F.3d 461, 465 (9th Cir. 2018) 8 (quoting Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006)). 9 With the notice of removal, Defendants included a declaration from SIE’s senior corporate 10 counsel stating that the sole member of SIE is Sony Corporation of America (“SCA”). 11 [Doc. No. 1-3.] Thus, SIE’s citizenship for diversity purposes is the same as SCA’s. To 12 that end, the notice of removal includes a statement of information from the California 13 Secretary of State’s website indicating that SCA is a New York corporation with its 14 principal place of business in New York. [Doc. No. at 38-39.] Based on this information 15 and evidence, Defendants have satisfied their burden to establish that the requisite diversity 16 exists. Plaintiff’s arguments to the contrary are unpersuasive. 17 Plaintiff’s sole argument for remand is that SCA is not actually SIE’s sole member. 18 First, Plaintiff argues that Defendants’ evidence that SCA is SIE’s sole member is based 19 on lack of foundation, lack of authenticity, and hearsay. [Doc. No. 4 at 6; Doc. No. 11.] 20 These objections are misplaced. When subject matter jurisdiction is challenged, the Court 21 may consider “summary-judgment-type evidence” relevant to disputed issues. Cf. Ibarra 22 v. Manheim Investments, Inc., 775 F.3d 1193, 1197 (9th Cir. 2015) (holding that parties 23 may submit “summary-judgment-type” evidence as to the amount in controversy 24 requirement). Rule 56 governing motions for summary judgment provides that “[a]n 25 26 27 28 1 The complaint alleges that Plaintiff resides in California and that G4S is a Florida corporation. [Doc. No. 1 at 14.] The notice of removal includes a declaration from G4S’s human resources director stating that G4S’s headquarters is located in Jupiter, Florida. [Doc. No. 1-2.] Accordingly, the Court is satisfied that sufficient diversity exists between Plaintiff and G4S. 3 21-CV-413-CAB-BLM 1 affidavit or declaration used to support or oppose a motion [for summary judgment] must 2 . . . set out facts that would be admissible in evidence. . . .” Fed. R. Civ. P. 56(c)(4) 3 (emphasis added). Plaintiff does not argue that Defendants could not offer any admissible 4 evidence that SCA is SIE’s sole member as stated in the declaration attached to the notice 5 of removal, and the declarations and evidence currently before the court do not present any 6 insurmountable evidentiary obstacles such as lack of foundation or proper authentication. 7 Defendants’ evidence is “summary-judgment-type evidence,” and Plaintiffs’ objections are 8 overruled. See generally Burch v. Regents of Univ. of California, 433 F. Supp. 2d 1110, 9 1120 (E.D. Cal. 2006) (“[W]hen evidence is not presented in an admissible form in the 10 context of a motion for summary judgment, but it may be presented in an admissible form 11 at trial, a court may still consider that evidence.”) (emphasis in original) (citing Fraser v. 12 Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003)). 13 Second, Plaintiff argues that SIE’s recent statement of information filing with the 14 California Secretary of State reveals that Kenichiro Yoshida, who has a California address, 15 is a member of SIE, making SIE a citizen of California for diversity purposes. [Doc. No. 16 4-1 at 7.] The form in question, however, plainly required SIE to list either a manager or 17 member. [Id.] With their opposition, Defendants offer a declaration stating that Kenichiro 18 Yoshida is a manager, not a member, of SIE. [Doc. No. 10-1.] Thus, the statement of 19 information on which Plaintiff relies does not rebut the evidence Defendants included with 20 their notice of removal that SIE’s sole member was SCA, and that SCA is a citizen of New 21 York and not of California. 22 IV. 23 For the foregoing reasons, Plaintiff’s motion to remand is DENIED. 24 It is SO ORDERED. 25 Conclusion Dated: April 27, 2021 26 27 28 4 21-CV-413-CAB-BLM

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