DeCarlo v. Cutera Inc

Filing 20

ORDER granting 16 Defendants' Motion to Remand Per LCR 3(I), case will be remanded 14 days from the date of this Order on 5/16/2018 to the Pierce County Superior Court; signed by Judge Ronald B. Leighton.(DN)

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THE HONORABLE RONALD B. LEIGHTON

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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LINDA DECARLO,

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NO. 3:17-cv-05997-RBL

Plaintiff,
vs.
CUTERA CORPORATION, a Foreign
Corporation, NORTHWEST VEIN AND
AESTHETIC CENTER, P.S., YI SOO
ROBERT KIM, M.D., and JOHNNA
GERONTAS,
Defendants.

ORDER GRANTING MOTION FOR
REMAND

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Before the Court is Defendants Northwest Vein & Aesthetic Center, Kim, and
Gerontas’s Motion for Remand. The motion was heard without oral argument.
BACKGROUND FACTS & PROCEDURAL HISTORY

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On December 1, 2017, defendant Cutera Corporation filed a notice of removal. Cutera

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Corporation is a foreign corporation. On March 5, 2018, the Court issued an Order Granting

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Leave to Amend Complaint, allowing plaintiff Linda DeCarlo to file an amended complaint

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adding new claims against additional defendants Northwest Vein & Aesthetic Center, Yi Soo

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Robert Kim, M.D., and Johnna Gerontas. Plaintiff DeCarlo filed and served the amended

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complaint shortly thereafter.

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Defendant Northwest Vein & Aesthetic Center is a Washington professional service
corporation with its principal place of business in Tacoma, Washington.

ORDER GRANTING MOTION FOR REMAND - 1
(3:17-cv-05997-RBL)

The two new

MULLIN, ALLEN & STEINER PLLC
101 Yesler Way, Suite 400
Seattle, Washington 98104
T: [phone] F: [phone]

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individual defendants, Yim and Gerontas, each reside in Washington. According to the

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Amended Complaint, plaintiff DeCarlo resides in Washington.

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ANALYSIS

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The removal statute, 28 U.S.C. § 1447, is strictly construed. Gaus v. Miles, Inc., 980

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F.2d 564, 566 (9th Cir. 1992). According to 28 U.S.C. § 1447(e), “If after removal the plaintiff

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seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the

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court may deny joinder, or permit joinder and remand the action to the State court.” Section

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1447(e) “requires a district court either to deny joinder of non-diverse defendants or to permit

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joinder and remand the case to state court. A district court may not allow joinder and retain

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jurisdiction.” Stevens v. Brink’s Home Security, Inc., 378 F.3d 944, 949 (9th Cir. 2004) (citing

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Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1068 (9th Cir. 2001)). Once a non-diverse

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defendant is joined, remand becomes mandatory. Id.

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Here, the Court has permitted joinder. The Amended Complaint adds three non-diverse

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defendants, destroying diversity jurisdiction per 28 U.S.C. § 1332(a). There is no other basis

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for the Court to retain subject matter jurisdiction. As a result, the Court lacks jurisdiction and

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is bound by § 1447(e). By operation of that statute, the Court must remand this action to Pierce

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County Superior Court.

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Accordingly, IT IS HEREBY ORDERED: Defendants Northwest Vein & Aesthetic

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Center, Kim, and Gerontas’s Motion for Remand is Granted. The Clerk of Court is directed to

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remand this action to the Pierce County Superior Court.

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DATED this 1st day of May, 2018.

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A

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Ronald B. Leighton
United States District Judge

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ORDER GRANTING MOTION FOR REMAND - 2
(3:17-cv-05997-RBL)

MULLIN, ALLEN & STEINER PLLC
101 Yesler Way, Suite 400
Seattle, Washington 98104
T: [phone] F: [phone]