Eck v. USP/GEE L.C.
Filing
12
OPINION AND ORDER: The Court DENIES Plaintiffs Motion 7 to Remand. This Court DIRECTS counsel to confer and to file no later than May 27, 2011, a joint status report proposing a case management schedule for the resolution of this matter. Thereafter the Court will set a Rule 16 conference. See 6-page order attached. Ordered by Judge Anna J. Brown. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
LAREMY ECK,
10-CV-1568-BR
Plaintiff,
OPINION AND ORDER
v.
USP/GEE L.C., doing business
as JIFFY LUBE #2528, a
foreign limited liability
company,
Defendants.
THOMAS MARTIN , JR.
Martin Elliott & Snell, PC
7070 S.W. Nyberg Road
Suite B
P.O. Box 575
Tualatin, OR 97062
(503) 692-0608
Attorneys for Plaintiff
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CHRISTOPHER E. HAWK
TANITH L. BALABAN
Gordon & Rees LLP
121 SW Morrison Street
Suite 1575
Portland, OR 97204
(503) 222-1075
Attorneys for Defendants
BROWN, Judge.
This matter comes before the Court on Plaintiff Laremy Eck’s
Motion (#7) to Remand.
For the reasons that follow, the Court
DENIES Plaintiff’s Motion.
BACKGROUND
On November 15, 2010, Plaintiff filed an action in Multnomah
County Circuit Court against Defendant USP/GEE L.C. (Jiffy Lube)
asserting a claim for public accommodation discrimination in
violation of Oregon Revised Statute § 659A.006.
On December 28, 2010, Defendant removed the action to this
Court on the basis of diversity jurisdiction.
On February 2, 2011, Plaintiff moved to remand this matter
to state court.
STANDARDS
28 U.S.C. § 1446(a) provides in pertinent part:
"A
defendant or defendants desiring to remove any civil action or
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criminal prosecution from a State court shall file in the
district court of the United States for the district and division
within which such action is pending a notice of removal."
U.S.C. § 1446(b) provides in pertinent part:
28
"The notice of
removal of a civil action . . . shall be filed within thirty days
after the receipt by the defendant, through service or otherwise,
of a copy of the initial pleading setting forth the claim for
relief upon which such action or proceeding is based."
A motion to remand is the proper procedure for challenging
removal.
Babasa v. LensCrafters, Inc., 498 F.3d 972, 974 (9th
Cir. 2007).
The removal statute is strictly construed, and any
doubt about the right of removal is resolved in favor of remand.
Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir.
2006).
See also Prize Frieze, Inc. v. Matrix, Inc., 167 F.3d
1261, 1265 (9th Cir. 1999), overruled on other grounds by Abrego
Abrego v. The Dow Chem. Co., 443 F.3d 676 (9th Cir. 2006).
The
party seeking removal bears the burden of establishing by a
preponderance of the evidence that all removal requirements are
Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1021 (9th Cir.
met.
2007).
See also Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117
(9th Cir. 2004).
For removal to be valid based on diversity jurisdiction, 28
U.S.C. § 1332(a) "requires complete diversity of citizenship."
Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir.
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2001).
A “core principle of federal removal jurisdiction on the
basis of diversity [is] that it is determined (and must exist) as
of the time the complaint is filed and removal is effected.”
Strotek Corp. v. Air Transport Ass'n. of Am., 300 F.3d 1129,
1131-31 (9th Cir. 2002)(citations omitted).
After “jurisdiction
attaches, a party cannot thereafter, by its own change of
citizenship, destroy diversity.
Nor may the presence of a sham
or nominal party defeat removal on diversity grounds.”
Id. At
1132 (citations omitted).
DISCUSSION
Plaintiff moves to remand this matter to state court on the
ground that Plaintiff may at some unspecified point move to amend
the Complaint to add the employee who engaged in the action that
Plaintiff alleges violated his right to be free from public
accommodation discrimination in violation of Oregon and that
employee is a resident of Oregon.
Plaintiff asserts joinder of
the employee would destroy diversity, and, therefore, this matter
should be remanded to state court.
As noted, diversity is determined as of the time the
complaint is filed and removal is effected.
Plaintiff does not
dispute diversity of the parties existed at the time this matter
was removed to this Court.
Nevertheless, “if after a case has
been removed to federal court a plaintiff seeks to join a
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defendant whose joinder would destroy complete diversity, the
district court has discretion to deny the joinder, or allow the
joinder and remand the case to state court.”
McJunkin v.
Wal-Mart Stores, Inc., No. 2:10-cv-01101-RLH-PA, 2011 WL 971062,
at *1 (D. Nev. Mar. 16, 2011)(citing 28 U.S.C. § 1447(e) and
Newcombe v. Adolf Coors Co., 157 F.3d 686, 691 (9th Cir. 1998)).
Here, however, Plaintiff has not sought to amend his Complaint to
join the employee who would allegedly destroy diversity, and,
therefore, Plaintiff's concerns in this regard are premature.
Accordingly, this Court continues to have diversity jurisdiction.
The Court, therefore, denies Plaintiff’s Motion to Remand as
premature.
CONCLUSION
For these reasons, the Court DENIES Plaintiff’s Motion (#7)
to Remand.
This Court DIRECTS counsel to confer and to file no later
than May 27, 2011, a joint status report proposing a casemanagement schedule for the resolution of this matter.
5 - OPINION AND ORDER
Thereafter the Court will set a Rule 16 conference.
IT IS SO ORDERED.
DATED this 12th day of May, 2011.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
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