Opinion
No. 2:14-cv-00607-GEB-AC
05-16-2014
BOYETT CONSTRUCTION, INC., a California Corporation, Plaintiff, v. ALLIANZ GLOBAL RISKS U.S. INSURANCE COMPANY, a California Corporation; ZURICH AMERICAN INSURANCE COMPANY, a New York Corporation; NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, a Pennsylvania Corporation; and DOES 1-50, inclusive, Defendants. AND RELATED CROSS ACTIONS
ORDER REMANDING CASE TO STATE
COURT
Plaintiff moves for an order remanding this case to the Superior Court of California, in and for the County of Placer, from which Defendant National Union Fire Insurance Company of Pittsburgh (hereinafter referenced as "National Union") removed it. In its Notice of Removal, National Union states the removal is made under 27 U.S.C. § 1441(b) based on diversity jurisdiction. However, § 1441(b) merely provides additional rules for diversity-jurisdiction removals under § 1441(a); therefore, the removal is construed as one under § 1441(a). National Union and Defendant Allianz Global Risks U.S. Insurance Company oppose the motion.
Plaintiff argues "National Union's Notice of Removal is procedurally defective and this case must be remanded" since, Defendant "Zurich [American Insurance Company (hereinafter referenced as 'Zurich')] did not join in or consent to National Union's Notice of Removal," and Plaintiff has failed to provide "a proper explanation as to why Zurich's consent was unable to be obtained." (Mem. P. & A. in Supp. Mot. to Remand 9:22-23, 11-12, 21-22, ECF No. 10-1.)
28 U.S.C. § 1441(a) prescribes: "[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." Further, § 144 6(b)(2)(A) prescribes: "When a civil action is removed solely under [§] 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action." "Ordinarily, under 28 U.S.C. § 1446(a), all defendants in a state action must join in the petition for removal, except for nominal, unknown or fraudulently joined parties." Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n.1 (9th Cir. 1988). "Where fewer than all the defendants have joined in a removal action, the removing party has the burden under section 1446(a) to explain affirmatively the absence of any co-defendant in the notice of removal." Prize Frize, Inc. v. Matrix (U.S.), Inc., 167 F.3d 1261, 1266 (9th Cir. 1999).
National Union states only the following in its Notice of Removal concerning Zurich's joinder in or consent to the removal: "National Union has not yet been able to obtain joinder from Zurich, who has yet to appear in this matter." (Not. of Removal ¶ 13, ECF No. 1.) However, National Union has not satisfied its burden of showing that the referenced lack of appearance absolves it from having Zurich join in or consent to removal. See Ligutom v. SunTrust Mortg., No. 10-cv-05431 HRL, 2011 WL 445655, at *5 (N.D. Cal. Feb. 4, 2011) ("[Defendant] only stated that [co-defendant] had not appeared in the action, and this does not determine whether [co-defendant] needed to join in the Notice of Removal or not."); Loya v. Aurora Loan Servs. LLC, No. 10-cv-0490 VRW, 2010 WL 1929618, at *1 (N.D. Cal. May 12, 2010) (holding that a notice of removal stating that a co-defendant "has not appeared in the State Court Action" was defective since it "d[id] not explain affirmatively the absence of non-joining defendants"). Therefore, National Union's Notice of Removal is procedurally deficient since National Union has not satisfied its burden of affirmatively explaining why it failed to obtain Zurich's joinder in or consent to the removal.
National Union also states that "[i]f the Court is inclined to find a defect in National Union's Notice of Removal, National Union respectfully requests leave to amend its Notice of Removal." (National Union's Opp'n 8:5-7, ECF No. 11.) However, National Union fails to provide sufficient argument supporting its position that discretion should be exercised as requested. Therefore, Plaintiff's remand motion is granted, and this case is remanded to the Superior Court of California, in and for the County of Placer.
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GARIAND E. BURRELL, JR.
Senior United States District Judge