Opinion
No. C 05-0983 CW.
May 17, 2005
ORDER DENYING PLAINTIFF'S MOTION TO REMAND
Plaintiff Abdallah B. Mohammed moves to remand this action to the Superior Court of the County of San Francisco. Defendants KLM Royal Dutch Airlines and Northwest Airlines, Inc. oppose the motion. The matter was taken under submission on the papers. Having considered the parties' papers and the evidence cited therein, the Court DENIES Plaintiff's motion to remand.
BACKGROUND
Plaintiff resides in Mountain View, California. KLM and Northwest are official partner airlines; KLM is organized under the laws of The Netherlands, and Northwest is a corporation organized under the laws of Minnesota, where it maintains its principal place of business. Defendants Stephen Turkson and Florence K. Ojidja are KLM employees in Ghana.
According to Plaintiff's complaint, in March, 2004, he purchased from KLM and Northwest a round-trip plane ticket to travel from San Francisco International Airport to Accra, Ghana. Plaintiff was scheduled to return to San Francisco on September 29, 2004. On September 29, at the Kotoka International Airport in Accra, Defendants allegedly refused carriage to Plaintiff without just cause and damaged several items in his luggage. Plaintiff contends that he was forced to purchase a one-way plane ticket from a different carrier in order to return to the United States.
On January 3, 2005, Plaintiff filed a complaint for breach of contract and general negligence against Defendants in the Superior Court of the County of San Francisco. The complaint seeks damages of $100,000 for Plaintiff's alleged financial loss and emotional distress. Plaintiff offers evidence in support of his motion to remand that he served Northwest and KLM with the complaint on February 7 and February 10, respectively. Plaintiff also submits evidence that a summons and complaint were delivered on February 12 via express mail to both Turkson and Ojidja at KLM's offices at the Kotoka International Airport in Accra. On March 8, 2005, KLM and Northwest removed the action to this Court; they based the removal on diversity of citizenship and federal subject matter jurisdiction. On March 14, 2005, Plaintiff filed this motion to remand.
LEGAL STANDARD
A defendant may remove a civil action filed in State court to federal district court so long as the district court could have exercised original jurisdiction over the matter. 28 U.S.C. § 1441(a). All defendants must join a notice of removal. Parrino v. FHP, Inc., 146 F.3d 699, 703 (9th Cir. 1998). Title 28 U.S.C. section 1447 provides that if, at any time before judgment, it appears that the district court lacks subject matter jurisdiction over a case previously removed from State court, the case must be remanded. 28 U.S.C. § 1447(c). On a motion to remand, the scope of the removal statute must be strictly construed. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). "The 'strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id. Courts should resolve doubts as to removability in favor of remanding the case to State court. See id.Ordinarily, federal question jurisdiction is determined by examining the face of the plaintiff's properly plead complaint.Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). When a plaintiff has suffered an injury that could give rise to both federal and State causes of action, the plaintiff "is free to ignore the federal cause of action and rest the claim solely on a state cause of action." Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367, 1370 (9th Cir. 1984). A plaintiff may not, however, artfully plead a complaint to avoid federal jurisdiction by "omitting from the complaint federal law essential to his claim, or by casting in state law terms a claim that can be made only under federal law." Olguin v. Inspiration Consol. Copper Co., 740 F.2d 1468, 1472 (9th Cir. 1984).
District courts have original jurisdiction over all civil actions "where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States." 28 U.S.C. § 1332(a). When federal subject matter jurisdiction is predicated on diversity of citizenship, complete diversity must exist between the opposing parties. Owen Equip. Erection Co. v. Kroger, 437 U.S. 365, 373-74 (1978).
DISCUSSION
I. Joinder of All Defendants
Plaintiff argues that remand is appropriate because not all Defendants joined in the notice of removal; KLM and Northwest acknowledge that Turkson and Ojidja did not join the removal notice. However, KLM and Northwest rely upon an exception to the rule of unanimity which states that a defendant who has not been served with the State court action need not join a notice of removal. See Salveson v. W. States Bankcard Ass'n, 731 F.2d 1423, 1429 (9th Cir. 1984), overruling on other grounds recognized by Ethridge v. Harbor House Rest., 861 F.2d 1389, 1392 (9th Cir. 1988). KLM and Northwest also acknowledge that it is their burden to explain the absence of the non-joining defendants. See Prize Fize, Inc. v. Matrix, Inc., 167 F.3d 1261, 1266 (9th Cir. 1999).
KLM and Northwest assert, in both their removal notice and their opposition papers, that Turkson and Ojidja have not been served with the complaint. Under Federal Rule of Civil Procedure 4(f)(1), service upon individuals in a foreign country is permissible "by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents." Rule 4(f) was addressed at length by the Ninth Circuit in Brockmeyer v. May, 383 F.3d 798 (9th Cir. 2004). In Brockmeyer, a plaintiff in the United States had sent a summons and complaint via first class mail to a post office box address for the defendant in Great Britain. 383 F.3d at 800. The court ruled that Rule 4(f)(1) "does not go beyond means of service affirmatively authorized by international agreements" such as the Hague Convention and, because the Hague Convention only affirmatively authorizes international service of process through the Central Authority in the receiving nation, Rule 4(f)(1) does not authorize service by international mail. Id. at 804. The Brockmeyer court also noted that service abroad by mail is affirmatively authorized, where there is no internationally agreed upon means of service, by Rule 4(f)(2)(C)(ii), but only if a signed receipt is required and when such mail is addressed and sent by the clerk of the court. Id. at 804-05.
Here, the evidence is clear that Plaintiff's method of service did not comply with Rule 4(f). First, Plaintiff did not serve Turkson and Ojidja through the Central Authority in Ghana, as the Hague Convention requires. See Fed.R.Civ.P. 4(f) (1);Brockmeyer, 383 F.3d at 804. Second, Plaintiff has cited no authority to support his argument that he may serve Turkson and Ojidja by mailing an envelope, through international mail, addressed to their place of business. Third, even if Plaintiff could show that the United States and Ghana have no internationally agreed upon means of service, the evidence is clear that the envelope sent by Plaintiff to Ghana was not addressed or dispatched by the clerk of the district court, and no signature of receipt was obtained. See Fed.R.Civ.P. 4(f)(2)(C)(ii). Thus, service of Turkson and Ojidja has not been accomplished in this case.
II. Diversity
One basis for removing this action is diversity of citizenship under Title 28 U.S.C. section 1332(a). KLM and Northwest note that this lawsuit is between citizens of different States and that there is complete diversity. They also note that Plaintiff's complaint seeks $100,000, which is greater than the amount in controversy requirement of section 1332(a). Plaintiff, citingPackard v. Provident Nat'l Bank, 994 F.2d 1039 (3rd Cir. 1993), argues that the amount in controversy requirement must be narrowly construed. Plaintiff may be right, but his complaint expressly alleges that he seeks $100,000 for his alleged injuries. Thus, the amount in controversy requirement is met, and the Court has diversity jurisdiction pursuant to section 1332(a).
III. Federal Question
Because the Court has ruled that it has jurisdiction over this action pursuant to Title 28 U.S.C. section 1332(a), it does not need to consider the parties' arguments as to whether the Court also has federal question jurisdiction pursuant to section 1331.
CONCLUSION
For the foregoing reasons, Plaintiff's motion to remand is DENIED.
IT IS SO ORDERED.