Opinion
2:21-CV-04153-AB (MAAx)
09-02-2021
GARINEH BAGHDASARIAN, Plaintiff, v. MACY'S, INC., MACY'S, MACY'S DEPARTMENT STORES, SHANNON GIANCOTTA, AND DOES 1 THROUGH 100, INCLUSIVE Defendants.
ORDER DENYING MOTION FOR REMAND
HONORABLE ANDRÉ BIROTTE JR. UNITED STATES DISTRICT COURT JUDGE
Before the Court is Plaintiff Garineh Baghdasarian's (“Plaintiff”) Motion for Remand (“Motion, ” Dkt. No. 9). Defendants Macy's, Inc., Macy's, and Macy's Department Stores (collectively “Defendants”) filed an opposition (“Opp'n, ” Dkt. No. 13). Plaintiff filed a reply (“Reply, ” Dkt. No.18). After reading and considering the arguments presented by the parties, the Court finds this matter appropriate for resolution without a hearing. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. For the reasons stated below, the Court DENIES Plaintiff's Motion for Remand, and Plaintiff's request for attorneys' fees and costs is DENIED as moot.
I. BACKGROUND
a. Plaintiff's Employment Background
On November 19, 1991, Plaintiff, an individual residing in the State of California, was hired at Defendants' retail store located in Glendale, California. See Declaration of Nancy Doumanina (“Doumanian Decl.”) at 2:16-17, Ex. A (“Compl.”) at 3:6-10, 7:27-28. During her employment with Defendants, Plaintiff worked at various retail stores located throughout California, including Pasadena and Woodland Hills. Id. at 7:28-8:3. In 2001, Plaintiff commenced working at Store 504 in Burbank, California as a Merchandising Team Manager. Id. 8:7-9. Plaintiff continued working in this position until her termination on or about February 21, 2020. Id. at 8:8-9. Plaintiff's supervisor during a portion of her employment at Store 504 was Shannon Giancotta. Id. at 3:6-10, 5:1-5, 8:10-11; see Declaration of Shannon Giancotta (“Giancotta Decl.”) at 2:21-24.
b. Procedural Background
On September 30, 2020, Plaintiff filed a Complaint in Los Angeles County Superior Court against the following individual and corporate Defendants: (1) Macy's, Inc.; (2) Macy's; (3) Macy's Department Stores; and (4) Shannon Giancotta. See generally Compl. Plaintiff asserted nineteen causes of action under the Fair Employment and Housing Act and California Labor Code related to her employment and termination. Id. The Complaint does not clearly state whether the amount in controversy exceeds $75,000, but Plaintiff seeks economic damages, including “lost wages, benefits, salary increases and income, both past and future” as well as non-economic damages, including “emotional distress.” Id. at ¶¶ 37, 41, 45, 49, 54, 58, 63, 67, 72, 77, 81, 86, 92, 96, 100, 104, 108, 112, 116, Prayer. Plaintiff also seeks “all compensatory and punitive damages recoverable under California law, as well as costs and attorney's fees as provided by statute.” Id. at ¶¶ 38, 42, 46, 50, 55, 59, 64, 68, 73, 78, 82, 87, 93, 97, 101, 105, 109, 113, 117, Prayer.
On December 17, 2020, Defendants Macy's, Inc. and Macy's West Stores, LLC, filed their Answer to Plaintiff's Complaint. See Declaration of Nancy Doumanian (“Doumanian Decl.”), at 2:18-19, Ex. B. Relevant here, in their Answer, Defendants note that “[t]here is no corporate entity in the Macy's family that is just called ‘Macy's'” and that “Macy's Department Stores changed its name to Macy's West Stores, Inc. in 2009, ” which subsequently “became Macy's West Stores, LLC as of June 1, 2020.” Id. at 1:27-28. Defendants' Answer contains a General Denial, several Affirmative Defenses, and a Reservation of Rights. Id. The Reservation of Rights states “Defendants [sic] right to assert additional defenses, if and to the extent that such defenses are application, is hereby reserved.” Id. at 7:25-27.
On January 5, 2021, Defendants Macy's, Inc. and Macy's West Stores, LLC filed a Motion to Compel Arbitration. See Doumanian Decl. at 2:20-21, Ex. C. Plaintiff opposed Defendants' Motion to Compel Arbitration. See Doumanian Decl. at 2:22-23, Ex. D.
On April 13, 2021, Plaintiff served Ms. Giancotta with the Complaint. See Giancotta Decl. at 3:8-9; Declaration of Betty Thorne (“Tierney Decl.”) at 2:21.
On April 26, 2021, Defendants' Motion to Compel Arbitration was heard, and an evidentiary hearing was scheduled for May 1, 2021. See Doumanian Decl. at 3:11-12, Ex. F. On May 1, 2021, the hearing was conducted. Id. However, the hearing was not concluded on May 1, 2021, and thus, continued to May 20, 2021. Id.
On May 14, 2021, Ms. Giancotta timely filed an Answer. See Tierney Decl. at 2:21-23, Ex. 2. On May 17, 2021, Ms. Giancotta served on Plaintiff, but did not file, a peremptory challenge to the state court judge presiding over the matter. See Doumanian Decl. at 3:13-16, Ex. G.
On May 18, 2021, Plaintiff voluntarily dismissed Ms. Giancotta without prejudice from the matter. See Tierney Decl. 2:24-26, Ex. 3.
On May 18, 2021, Defendants Macy's, Inc., Macy's, and Macy's Department
Stores, Inc., removed the matter to this Court based on diversity jurisdiction pursuant to 28 U.S.C. §§ 1332, 1441(b), and 1446(b)(3). See Notice of Removal of Action (Dkt. No. 1).
On June 17, 2021, Plaintiff timely filed the instant Motion seeking the matter be remanded to state court.
II. LEGAL STANDARD
“The burden of establishing jurisdiction falls on the party invoking the removal statute, which is strictly construed against removal.” Sullivan v. First Affiliated Sec., Inc., 813 F.2d 1368, 1371 (9th Cir. 1987) (internal citations omitted); see also Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). “The ‘strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper.” Gaus v. Miles, Inc., 980. F.2d 564, 566 (9th Cir. 1992). If any doubt exists as to the right of removal, federal jurisdiction must be rejected. Id. at 566-67; see also Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (“[T]he court resolves all ambiguity in favor of remand to state court.”).
“If a court has diversity jurisdiction over a case, its ‘virtually unflagging obligation to exercise the jurisdiction conferred upon [it] by the coordinate branches of government and duly invoked by litigants,' precludes it from remanding state law claims.” Kakarala v. Wells Fargo Bank, NA, 615 Fed.Appx. 424, 425 (9th Cir. 2015) (internal citations omitted).
III. DISCUSSION
a. Request For Judicial Notice
Pursuant to Federal Rule of Evidence (“FRE”) 201, a court “must take judicial notice if a party requests it and the court is supplied with the necessary information.” Fed.R.Evid. 201(c). Judicial notice permits a court to consider an adjudicative fact “that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b)(1)-(2); see Fed. R. Evid. 201(b), advisory committee's note (“With respect to judicial notice of adjudicative facts, the tradition has been one of caution in requiring that the matter be beyond reasonable controversy.”). The Ninth Circuit has made clear that “[a] court must also consider-and identify-which fact or facts it is noticing from . . . [a document]. Simply because the document itself is susceptible to judicial notice does not mean that every assertion of fact within that document is judicially noticeable for its truth.” Khoja v. Orexigen Therapeutics, 899 F.3d 988, 999 (9th Cir. 2018).
Plaintiff asks this Court to take judicial notice of several documents it contends are relevant to her Motion for Remand. Exhibits A, B, C, D, F, and G are court filings from the state court proceeding. (RJN ¶¶ 1-4, 6, 7). Exhibit H is Macy's West Stores, LLC's filings with the Secretary of State for the State of California, including the 2020 Applications to Register as a Foreign Limited Liability Corporation, and the January 6, 2021 LLC Termination - Certificate of Cancellation. (Id. ¶ 8). These exhibits are judicially noticeable as matters of public record. See Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial notice of court filings and other matters of public record.”).
Plaintiff filed a Supplemental Request for Judicial Notice (“Supplemental Request”). See Dkt. No. 25. Notably, Exhibits A, B, C, and D in the Supplemental Request are the same documents contained in Exhibit H above-noted. Plaintiff's Supplemental Request also seeks judicial notice of two remand Orders, Exhibits E and F, from unrelated cases involving Macys. Although Exhibits E and F are judicially noticeable, that does not mean that every assertion of fact within them is judicially noticeable for its truth. See Khoja, 899 F.3d at 999-1000. To the extent Plaintiff seeks judicial notice of the existence of these remand Orders, Plaintiff's request is GRANTED.
However, Exhibits E, I, and J are not judicially noticeable because Plaintiff does not state how the facts within these documents are “not subject to reasonable dispute, ” either because they are “generally known” within this court's jurisdiction or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” (RJN ¶¶ 5, 9, 10); Fed.R.Evid. 201(b). In a sweeping manner, Plaintiff asks the Court to judicially notice all the factual content contained in Exhibits E, I, and J, an action this Court is unwilling and unable to take. See Khoja, 899 F.3d at 999-100; see also DalPoggetto v. Wirecard AG, No. CV 19-0986 FMO (SKx), 2020 WL 2374948, at *2 (C.D. Cal. Apr. 15, 2020) (denying the defendant's request for judicial notice where the defendant had only requested that the court notice whole documents rather than specific facts); Capaci v. Sports Research Corp., No. CV 19-3440 FMO (FFMx), 445 F.Supp.3d 607, 617 (C.D. Cal. Mar. 26, 2020) (denying request for judicial notice where defendant did “not indicate which facts within the exhibits” it sought notice of but rather “simply request[ed] that the court take judicial notice of the documents in their entirety.”); Advanced Risk, 2019 WL 6716292 at *3-5; Crawford v. Countrywide Home Loans, Inc., 647 F.3d 642, 649 (7th Cir. 2011) (finding that the district court did not abuse its discretion by refusing to take notice where the plaintiffs “sought judicial notice not of particular discrete facts, but of a number of whole documents[.]”) (internal citation and quotation omitted).
As such, Plaintiff's request for judicial notice as to Exhibits A, B, C, D, F, G, and H is GRANTED, but Plaintiff's request for judicial notice as to Exhibits E, I, and J is DENIED.
b. Timeliness Of Removal
Under 28 U.S.C. § 1446(b) (“Section 1446”), a defendant seeking to remove a case in diversity jurisdiction must file a notice of removal within thirty days after service of the complaint. If, however, a case is not removable at the outset, the defendant may file a notice of removal within thirty days after receiving “a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b); see e.g., Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 696 (9th Cir. 2005) (holding a notice of removal may be filed within thirty days from when a defendant may ascertain that removal is proper.); Powers v. Chesapeake & O. Ry., 169 U.S. 92 (1898) (holding that the time period for removal begins to run only after complete diversity occurs and that the plaintiff's delay in dismissing one of the defendants did not defeat removal.).
Here, Plaintiff argues that Defendants acted with “unclean hands” when filing their Notice of Removal because it was filed to avoid having their Motion to Compel Arbitration denied. See Motion at 10:12-14, 11:3-5. In her Reply, Plaintiff also argues that Defendants “should have promptly removed the action on or before December 6, 2020” since Defendants essentially allege that Ms. Giancotta was a “sham defendant having been added to defeat diversity.” Reply at 3:17-18, 3:5-9. However, Plaintiff's arguments are unpersuasive for the following two reasons.
First, Defendants were unable to remove the matter at the onset because diversity jurisdiction did not exist since Plaintiff's Complaint named a non-diverse individual as a defendant, Ms. Giancotta, who is a resident of California. See generally Compl.; see also Giancotta Decl. at 2:25-3:9. In their Opposition, Defendants do not allege that Ms. Giancotta was a sham defendant; rather, Defendants contend that diversity jurisdiction did not exist prior to Plaintiff's voluntary dismissal of Ms. Giancotta, the only non-diverse defendant. See generally Opp'n. As such, Defendants were unable to remove the matter to federal court within thirty days of service of the Complaint because there was no basis for removal.
Second, Defendants promptly and timely removed the matter once it became ascertainable that diversity jurisdiction existed. Specifically, on May 18, 2021, Plaintiff voluntarily dismissed Ms. Giancotta, the only non-diverse defendant, from the state court action. See Tierney Decl. 2:24-26, Ex. 3. That same day, Defendants filed their Notice of Removal, rather than continue litigating in the state court proceeding. As such, despite having until June 17, 2021 to file their Notice of Removal, Defendants filed their Notice on May 18, 2021. See 28 U.S.C. § 1446(b).
Accordingly, pursuant to Section 1446, Defendants filed their Notice of Removal within thirty days of it becaming ascertainable that the case was removable.
c. Diversity Jurisdiction
Under 28 U.S.C. §1441(a) (“Section 1441”), a civil action may be removed to the district court where the action is pending if the district court has original jurisdiction over the action. Under 28 U.S.C. §1332 (“Section 1332”), a district court has original jurisdiction of a civil action where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and the dispute is between “citizens of different states.” Section 1332(a)(1) requires complete diversity, meaning that “the citizenship of each plaintiff is diverse from the citizenship of each defendant.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996); see also Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009).
i. Amount in Controversy
In cases “[w]here it is unclear from the face of the complaint whether the amount in controversy exceeds $75,000, the removing defendant bears the burden of establishing, by a preponderance of the evidence, that the amount in controversy exceeds the jurisdictional threshold.” Chavez v. JPMorgan Chase & Co., 888 F.3d 413, 416 (9th Cir. 2018) (citing Urbino v. Orkin Servs. of Cal., Inc., 726 F.3d 1118, 1121-22 (9th Cir. 2013) (quotation marks and citations omitted).
In assessing the amount in controversy, courts consider “allegations in the complaint and in the notice of removal, as well as summary-judgment-type evidence relevant to the amount in controversy.” Chavez, 888 F.3d at 416 (internal citation omitted); see also Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 690 (9th Cir. 2006) (evidence properly considered includes “facts in the removal petition, and . . . summary-judgment-type evidence relevant to the amount in controversy at the time of removal.”). The amount in controversy may include “damages (compensatory, punitive, or otherwise) and the cost of complying with an injunction, as well as attorneys' fees awarded under fee shifting statutes.” Chavez, 888 F.3d at 416 (internal citation omitted); see also Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998) (“where an underlying statute authorizes an award of attorneys' fees, either with mandatory or discretionary language, such fees may be included in the amount in controversy.”).
Courts may separate wages into two categories: “past wages-i.e., lost wages between the date of Plaintiff's termination and the date of removal-and future wages-i.e., lost wages between the date of removal and trial.” Fisher v. HNTB Corp., No. 2:18-CV-08173-AB (MRWx), 2018 WL 6323077, at *5 n. 7 (C.D. Cal. Dec. 3, 2018). When the date of a trial is not set, courts have found one year from the date of removal to be a conservative trial date estimate. Calhoun v. Consol. Disposal Serv., LLC, No. 19-cv-2315-MWF (MRWx), 2019 WL 2522677, at *3 (C.D. Cal. June 18, 2019); see also Reyes v. Staples Office Superstore, LLC, No. CV 19-07086-CJC (SKx), 2019 WL 4187847, at *3 (C.D. Cal. Sept. 3, 2019).
Here, as Plaintiff admits in her Reply, it is unclear from the face of the Complaint whether the amount in controversy exceeds $75,000. See Reply at 7:19-20. As such, Defendants bear the burden of establishing, by a preponderance of the evidence, that the amount in controversy exceeds $75,000.
As an initial matter, Plaintiff's statement that “[t]here is zero evidence before this Court that the amount in controversy exceeds $75,000” is unfounded. Id. at 7:18-19. Plaintiff's Complaint was filed as an “unlimited” civil case, that is, one in which the amount demanded exceeds $25,000. See Cal. Civ. Proc. § 85(a). Accordingly, the court can reasonably infer that more than $25,000 is at issue in this matter.
Second, Defendants have demonstrated through a preponderance of the evidence that the amount in controversy exceeds $75,000. Defendants submitted a declaration from Alex Bleckert, Vice President of Colleague Support for Macy's Corporate Services, Inc., in support of their position that the amount in controversy exceeds $75,000. See Declaration of Alex Bleckert (“Bleckert Decl.”) at 2:6-7, 2:22-9 26. Mr. Bleckert's declaration includes copies of Plaintiff's wage statements and W-2 forms prior to her termination. See Bleckert Decl. Exs. 1-2. Based on this evidence, the Court determines that Plaintiff was earning at least $60,000 per year prior to her termination on or about February 21, 2020. See Compl. at 8:8-9. Accordingly, because the matter was removed on May 18, 2021, Plaintiff's lost wages alone- $79,800 ($60,000 x 1.33 years = $79,800)-satisfy the amount in controversy. Furthermore, since Plaintiff also requests, among other things, punitive damages and attorneys' fees under fee shifting statutes, Defendants have established that the amount of controversy exceeds $75,000.
The $60,000 estimate used in the Court's calculation is derived from the non-redacted portions of Plaintiff's wage statements from February 2015 and February 2016. See Bleckert 10. Decl., Ex. 2, pp. 7-8.
ii. Diversity Of Citizenship
To demonstrate citizenship for diversity purposes, a party must (1) be a citizen of the United States, and (2) be domiciled in a state of the United States. Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986). A person is domiciled in a State where he or she has “established a fixed habitation or abode in a particular place, and [intends] to remain there permanently or indefinitely.” Id. at 749-50 (internal quotations omitted).
When determining citizenship for diversity jurisdiction, a corporation is deemed to be a citizen of every state it is incorporated in, as well as the state where it has its principal place of business. See 28 U.S.C. § 1332(c)(1). Principal place of business refers to the corporation's nerve center, the “place where the corporation's [high-level] officers direct, control, and coordinate the corporation's activities.” Hertz Corp. v. Friend, 559 U.S. 77, 81 (2010). “[A]n LLC is a citizen of every state of which its owner/members are citizens.” Johnson v. Columbia Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). Here, Plaintiff and Defendants are citizens of different states.
The fact that a non-diverse defendant, Ms. Giancotta, was present prior to removal in the state court proceeding is not relevant to the diversity analysis since Plaintiff voluntarily dismissed Ms. Giancotta on May 18, 2021. As such, Ms. Giancotta's citizenship is not at issue. See Caterpillar, 519 U.S.; see e.g., Kakarala v. Wells Fargo Bank, NA, 615 Fed.Appx. at 425 (holding that “[t]he district court had no discretion to remand [the] claims to state court” when diversity jurisdiction exists.) (internal citation omitted). Nonetheless, the Court determines from the evidence presented by Defendants that Ms. Giancotta is a citizen of 11. California, which is not disputed by Plaintiff. See Giancotta Decl. at 2:25-3:9.
1. Citizenship Of Plaintiff
The evidence presented by Defendant establishes that Plaintiff is domiciled in California, which Plaintiff does not dispute. Plaintiff is currently a resident of Los Angeles, California. See Compl. at 3:6-10. From 1991 to 2020, Plaintiff worked at several of Defendants' retail stores located in Glendale California; Paseo, California; Woodland Hills, California, and Burbank, California. Id. at 7:27-8:8; Declaration of Alex Bleckert (“Bleckert Decl.”) at 2:27-3:4. Plaintiff's W-2 forms list her residence in Glendale, California. Bleckert Decl. at 3:6-8, 3:16-20, Ex. 1. Similarly, Plaintiff's wage statements from 2015 to 2020 list this same address in Glendale, California. Id., Ex. 2. Accordingly, Defendants have established that Plaintiff has “a fixed habitation or abode in a particular place, and [intends] to remain there permanently or indefinitely, ” which is not disputed by Plaintiff. Lew, 797 F.2d at 749-50.
iii. Citizenship Of Macy's, Inc.
Defendant Macy's, Inc. contends that it is a citizen of Delaware and New York. It has presented the declaration of Steven Watts, Senior Counsel in Macy's, Inc. Law Department, in support of Macy's Inc.'s citizenship. Mr. Watts asserts that Macy's, Inc. was and remains incorporated under the laws of the state of Delaware. Declaration of Steven Watts (“Watts Decl.”) at 4:25-28. Mr. Watts also states that Macy's, Inc.'s principal place of business is New York, New York. Id. In support of this statement, he asserts that “the directors and executive management team who direct, control, and coordinate Macy's activities do so from New York, New York.” Id. 5:15-17. For example, out of the twenty-seven officers for Macy's, Inc., the majority reside in New York City and only one officer resides in California. Id. at 5:1-7. Similarly, all the members of the Senior Executive Committee of Macy's Inc., including the Chairman and Chief Executive Officer, reside in New York City. Id. at 5:8-12. No. member of the Senior Executive Committee resides in California. Id. at 5:12-13.
Defendants untimely submitted the Declaration of Mr. Watts. See Dkt. Nos. 21-22. In response, Plaintiff filed a supplemental declaration and objections requesting that Mr. Watt's declaration be stricken or disregarded. See Dkt. Nos. 23-24. Plaintiff's objections are overruled. See L.R. 7-6 and 7-7. Accordingly, the Court will not disregard nor strike Mr. Watt's declaration.
iv. Citizenship of Macy's Department Stores, Inc.
Defendant Macy's Department Stores, Inc., currently known as Macy's Retail Holdings, LLC, contends that it is a citizen of Delaware and New York.
On or about August 31, 2009, Macy's Department Stores, Inc. changed its name to Macy's West Stores, Inc. See Watts Decl. at 2:24-27, Ex. 1. From August 2009 through May 2020, Macy's West Stores, Inc. operated the retail stores known as “Macy's” and “employed all of the sales associates and personnel operating the stores in the State of California.” Id.
“Macy's” is a “short-hand name given to many of the entities in the Macy's corporate structure, but it is not a valid corporate descriptor.” See Tierney Decl. at 2:13-15; see also Watts Decl. at 2:21-23.
In May 2020, Macy's West Stores, Inc. “converted from a corporation to a limited liability company and change[d] its name to Macy's West Stores, LLC.” Watts Decl. at 3:13-15, Ex. 2. Macy's West Stores, LLC sole owner and member is Macy's Retail Holdings, LLC, whose sole owner, and member is Macy's Inc., who is a citizen of the state of Delaware and New York. See Watts Decl. at 3:15-20, Ex. 8. As such, at the time Plaintiff filed her Complaint on September 30, 2020, Macy's West Stores, LLC was a citizen of the state of Delaware and New York. Id.
After Defendants filed their Answer in state court, on or about December 31, 2020, Macy's West Stores, LLC merged into Macy's Retail Holdings, LLC, with Macy's Retail Holdings, LLC emerging as the surviving entity. See Watts Decl. at 3:21-24, Exs. 3-7. Accordingly, “the current name of Defendant Macy's Department stores, Inc. is Macy's Retail Holdings, LLC.” Id. at 4:18-20.
In contrast, Plaintiff contends that Defendants are citizens of California because they have a “substantial presence” in California. Plaintiff contends that the Ninth Circuit determines a corporation's citizenship by examining the entity's “total activities, ” considering where its operations are located, where it supervises that business, and where it employs persons. Motion at 13:19-25. Plaintiff argues that since Defendants have “maintained sufficient minimum contacts, business activity, and commerce within the County of Los Angeles and State of California, ” California can “‘reach out' to Defendant[s] and have jurisdiction.” Motion at 14:6-10, 14:17-18. To support this position, Plaintiff cites Industrial Tectonics Inc. v. Aero Alloy, 912 F.2d 1090, 1094 (9th Cir. 1990). However, in light of the test set forth in Hertz, Plaintiff's arguments are unpersuasive.
Plaintiff has also not contradicted the evidence provided by Defendants regarding their place of incorporation and principal place of business. Accordingly, Defendants have satisfied their burden of showing that they are not citizens of California. Rather, under Hertz, Defendants are citizens of Delaware and New York. See generally Watts Decl.
For these reasons, Defendants have sufficiently demonstrated that there is complete diversity between the parties.
d. Waiver Of Diversity Jurisdiction
A party “may waive the right to remove to federal court where, after it is apparent that the case is removable, the defendant takes actions in state court that manifest his or her intent to have the matter adjudicated there, and to abandon his or her right to a federal forum.” Resolution Trust Corp. v. Bayside Developers, 43 F.3d 1230, 1240 (9th Cir. 1994); see also EIE Guam Corp. v. Long Term Credit Bank of Japan, Ltd., 322 F.3d 635, 649 (9th Cir. 2003) (holding that waiver requires “a clear and unequivocal abandonment of the right to a federal forum”); Foley v. Allied Interstate, Inc., 312 F.Supp.2d 1279, 1284-85 (C.D. Cal. 2004) (noting that waiver is disfavored because “access to a federal forum is a significant right”). Such a waiver “must be clear and unequivocal.” Resolution Trust Corp., 43 F.3d at 1240 (quoting Beighley v. FDIC, 868 F.2d 776, 782 (5th Cir. 1989)). For example, when “a party takes necessary defensive action to avoid a judgment being entered automatically against him, such action does not manifest an intent to litigate in state court, and accordingly, does not waive the right to remove.” Resolution Trust Corp., 43 F.3d at 1240. Generally, a defendant does not forfeit its right to remove “by action in state court short of proceeding to an adjudication on the merits.” Resolution Trust Corp., 43 F.3d at 1240; Acosta v. Direct Merchants Bank, 207 F.Supp.2d 1129, 1131-32 (S.D. Cal. 2002) (reciting the same). Determining whether a defendant has “waived [its] right to remove based on active participation [in state court] must be made on a case-by-case basis.” Oster v. Standard Life Ins. Co., No. CV 09-00851, 2009 WL 1260174 (N.D. Cal. May 6, 2009) (quoting Yusefzadeh v. Nelson, Mullins, Riley & Scarborough, LLP, 365 F.3d 1244, 1246 (11th Cir. 2004)).
However, after a defendant is on notice of the potential to remove an action, courts agree that proceeding through various pretrial matters in state court constitutes waiver. See Mattel, Inc. v. Bryant, 441 F.Supp.2d 1081, 1091 (C.D. Cal. 2005) aff'd, 446 F.3d 1011 (9th Cir. 2006) (holding filing a permissive counter-claim in state court constituted waiver after defendant was on notice of the potential to remove the matter.); see e.g., Hazelwood v. A.W. Chesterton Co., No. CV 12-1313, 2012 WL 2344103 (N.D. Cal. June 20, 2012) (granting motion to remand where once right to remove became apparent, a defendant nonetheless “proceeded through various pretrial matters and the start of the jury trial before filing its notice of removal, requiring the state court to devote a considerable amount of its limited resources to these matters, even though [the defendant] knew that such efforts would be wasted” once it removed to federal court).
Here, Plaintiff argues that Defendants waived their right to seek removal because: (1) they failed to “plead an affirmative defense [of lack of jurisdiction] as required by Federal Rule 8(c)” in their Answer; and (2) they filed a motion to compel arbitration seeking substantive relief from the state court and actively participating int a hearing in progress on the matter.” Motion at 8:10-11, 8:26-9:1. Both of Plaintiff's waiver arguments are unpersuasive.
Plaintiff also argues that Defendants' decision in unrelated state court matters to not remove demonstrate Defendants are “acting with unclean hands” and mitigate in favor of remanding. Motion at 12:16-13:9. However, a party's decision regarding removal in unrelated matters have no bearing on the current analysis of whether remand is proper.
Prior to Plaintiff's voluntary dismissal of Ms. Giancotta on May 18, 2021, there was no basis, for Defendant to remove the matter to federal court. As such, the filing of an Answer and Motion to Compel Arbitration in state court proceeding prior to the case becoming removable do not demonstrate that Defendants had an intent to have the matter adjudicated in state court, and to abandon their right to a federal forum. See Kenny v. Wal-Mart Stores, Inc., 881 F.3d 786, 790 (9th Cir. 2018) (holding “filing a pleading, such as an answer or demurrer, or other pleading raising a defense that might be conclusive on the merits, ” does not waive a defendant's right to a federal forum prior to the case being removable.).
Indeed, Defendants filed their Notice of Removal the same day that Plaintiff voluntarily dismissed Ms. Giancotta, the non-diverse defendant, from the matter. See Dkt. No. 1; see also Tierney Decl. 2:24-26, Ex. 3. Thus, as soon as it was apparent that the case was removable, Defendants promptly removed the matter. Accordingly, because it was not “unequivocally apparent” that the case was removable, Defendants did not manifest their intent to have the matter adjudicated in state court, and to waive their right to a federal forum.
IV. CONCLUSION
For the following reasons, Plaintiffs Motion for Remand is DENIED. Because Plaintiffs Motion is DENIED Plaintiffs request for attorneys' fees and costs is DENIED as moot
IT IS SO ORDERED.