Walth et al v. Staples the Office Superstore LLC, et al

Filing 7

ORDER denying ECF No. 4 Plaintiffs' Motion to Remand. Signed by Judge Rosanna Malouf Peterson. (TR, Case Administrator)

1
2
3
4
UNITED STATES DISTRICT COURT

5

EASTERN DISTRICT OF WASHINGTON

6
7
8

LEE WALTH and JANET WALTH,
husband and wife and the marital
community comprised thereof,
Plaintiff,

9
10
11
12

NO: 2:17-CV-323-RMP
ORDER DENYING PLAINTIFFS’
MOTION TO REMAND

v.
STAPLES THE OFFICE
SUPERSTORE, LLC; STAPLES,
INC; SPAR MARKETING FORCE,
INC; and JOHN DOES 1-5,

13
Defendants.
14
15

BEFORE THE COURT is Plaintiffs’ Motion to Remand this matter to state

16

court, ECF No. 4. The Court has reviewed the motion and all relevant filings, and is

17

fully informed.

18

BACKGROUND

19

Plaintiffs Lee and Janet Walth (“the Walths”) filed a civil tort action in

20

Spokane County Superior Court against Staples the Office Superstore, LLC; Staples,

21

Inc.; Spar Marketing Force, Inc.; and John Does 1-5 (collectively, “Defendants”).
ORDER DENYING PLAINTIFF’S EX PARTE MOTION TO REMAND ~ 1

1

ECF No. 1-2. On September 15, 2017, Defendant Spar Marketing Force removed

2

the action to federal court pursuant to diversity jurisdiction. ECF No. 1. On October

3

9, 2017, the Walths filed this motion 1 to remand the matter to the Spokane County

4

Superior Court on the ground that all named Defendants had not consented to

5

removal. ECF No. 4. On October 12, 2017, the other named Defendants, Staples

6

the Office Superstore, LLC, and Staples, Inc., joined Defendant Spar Marketing

7

Force in removing the action to federal court.

8

DISCUSSION

9

Defendant Spar Marketing Force filed its Notice of Removal pursuant to 28

10

U.S.C. § 1441(a), which provides that defendants may remove a civil action brought

11

in a State court to the federal district court embracing the place where the action is

12

pending. Spokane County Superior Court is within the Eastern District of

13

Washington, where this Court sits.

14

The federal district court must have original jurisdiction over the action. §

15

1441(a). Defendant Spar Marketing Force filed its Notice of Removal on the basis

16

of diversity jurisdiction under 28 U.S.C. § 1332(a), asserting that the amount in

17

controversy exceeds $75,000 and that the Walths are citizens of a different state than

18

all named Defendants. ECF No. 1, at 2-3. The Walths’ complaint seeks damages

19
20

1

21

basis for considering this motion appropriate for ex parte filing.

Although Plaintiffs filed this motion ex parte, the Court finds that there is no

ORDER DENYING PLAINTIFF’S EX PARTE MOTION TO REMAND ~ 2

1

for medical expenses, loss of earnings, loss of future earnings, pain and suffering,

2

and loss of consortium, which the Court concludes exceeds the $75,000 mark for

3

diversity jurisdiction cases. ECF No. 1-2, at 4.

4

In addition, section 1441 provides that, “[i]n determining whether a civil

5

action is removable on the basis of the jurisdiction under [28 U.S.C. § 1332(a)], the

6

citizenship of defendants sued under fictitious names shall be disregarded.” §

7

1441(b). Therefore, the citizenship of the John Does 1-5 is immaterial to this

8

motion. The Walths are citizens of Spokane County, Washington. ECF No. 1-2, at

9

2. Defendant Spar Marketing Force is a Nevada domestic corporation with its

10

principal place of business in Michigan. ECF No. 1, at 2. Defendants Staples the

11

Office Superstore and Staples, Inc., are Delaware business entities with their

12

principal place of business in Massachusetts. Id. Therefore, the parties are diverse

13

for the purposes of § 1332(a).

14

The Walths seek to remand the action to State court on the ground that not all

15

Defendants had consented to removal as required by 28 U.S.C. § 1446(b)(2)(A).

16

When an action is removed under § 1441(a) all properly joined and served

17

defendants are required to join in or consent to the removal of the action. 28 U.S.C.

18

§ 1446(b)(2)(A). If all defendants have not joined the petition for removal when it is

19

filed, “the district court may allow the removing defendants to cure the defect by

20

obtaining joinder of all defendants prior to the entry of judgment.” Destfino v.

21

Reiswig, 630 F.3d 952, 957 (9th Cir. 2011) (citing Soliman v. Philip Morris Inc., 311
ORDER DENYING PLAINTIFF’S EX PARTE MOTION TO REMAND ~ 3

1

F.3d 966, 970 (9th Cir. 2002)). The Court finds that Defendants have cured the

2

procedural defect because Defendants Staples the Office Superstore and Staples,

3

Inc., the only named Defendants, have joined in the notice of removal. ECF No. 5.

4
5
6
7
8

Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Ex Parte Motion to
Remand, ECF No. 4, is DENIED.
The District Court Clerk is directed to enter this Order and provide copies to
Plaintiffs.
DATED October 16, 2017.

9
10

s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge

11
12
13
14
15
16
17
18
19
20
21
ORDER DENYING PLAINTIFF’S EX PARTE MOTION TO REMAND ~ 4