Presently before the court is the motion filed by plaintiff Tiffany Perket ("Perket") to remand to state court her lawsuit against defendants CCRI, Inc., doing business as Haven Spa Pool & Hearth ("Haven"), and Audrey Gene Keck ("Keck"). In addition, Haven and Keck seek severance of the employment claims alleged against Haven from the personal injury claim alleged against Keck.

The court finds the employment claims fall under this court's original jurisdiction, Keek's Notice of Removal was proper, supplemental jurisdiction is not warranted over the personal injury claim against Keck, and this court has diversity jurisdiction over the claim against Keck. Therefore, the court recommends denying Perket's motion to remand this lawsuit to the state court where it initially was filed, granting Haven's motion to sever the personal injury claim, and granting Keek's request to remain in this court.

Background

On or about December 30, 2018, Perket began working for Haven. (Notice of Removal, ECF No. 1 ("Notice"), Ex. A ("Compl."), ¶ 9.) Perket alleges the compensation package she and Haven agreed upon included a long-term disability insurance policy. (Id.) Seven months later, on or about July 27, 2019, Perket was driving north on Highway 211 near Eagle Creek-Sandy Highway when Keck allegedly drove through a stop sign and collided with Perket's car, causing injuries to Perket. (Compl. ¶¶ 2, 3, 5.) Three months after the accident, on or about October 29, 2019, Perket sought to utilize the disability insurance benefits Haven allegedly promised her, but Haven informed her "its offer was 'in error'" and that "Defendant Haven had not added Plaintiff to its disability insurance policy." (Compl. ¶ 10.) A few weeks later, on November 11, 2019, Perket learned she was pregnant and informed Haven of this fact. (Compl. ¶ 26.) Haven fired Perket three days later. (Id.)

Two months later, on January 15, 2021, Perket filed a complaint in the Circuit Court of the State of Oregon for Multnomah County seeking approximately $300,000 in damages from Keck for personal injuries and over $650,000 in damages from Haven for employment discrimination ("Complaint"). (Notice, at 17; Compl., ¶¶ 1-5.) In the Complaint, Perket alleges Keck was negligent in failing to yield the right of way, failing to keep a proper lookout, failing to maintain proper control of her vehicle, and failing to stop at a stop sign, resulting in Perket's injuries (first claim). (Compl. ¶¶ 4-5.) Against Haven, Perket alleges it breached an employment contract by refusing to provide her agreed upon benefits from a long-term disability insurance policy (second claim); failed to pay Perket wages she was owed under Or. Rev. Stat. §§ 652.140, 653.261 (2019) (third claim); discriminated against her based on her disability in violation of the Americans with Disabilities Act ("ADA") per 42 U.S.C. §§ 12101-03, 12111-12 (fourth claim); and discriminated against her based on her pregnancy (fifth claim). (Compl. ¶¶ 12-28.) Both defendants were timely and properly served.

Though the first page of the complaint specifies the prayer is for $375,000, these amounts are totaled from the prayer for relief at the end of complaint.

Perket alleged a Sixth Claim for relief for OFLA Interference/Retaliation against Defendant Haven, but voluntarily dismissed the claim upon learning Haven has never employed twenty-five or more employees in Oregon. (Pl.'s Mot. Remand, ECF No. 8, ("Pl.'s Mot."), at 2 n.l.)

On February 16, 2021, Haven timely filed a Notice of Removal of the lawsuit to this court based on federal question jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction under 28 U.S.C. § 1367. (Notice, at 1.) Haven also suggested this court, upon removal, sever the personal injury claim from the employment claims and remand the personal injury claim under 28 U.S.C. § 1441 (c)(2). (Notice ¶ 9.) Ten days later, on February 26, 2021, Perket filed a motion to remand, arguing that Haven failed to comply with the statutory requirements of removal and severance would unduly prejudice her claims, disregard her choice of forum, and waste judicial resources. (Pl.'s Mot. Remand, ECF No. 8 ("Pl.'s Mot."), at 1.) On April 21, 2021, Keck joined a portion of Haven's partial opposition to the Motion, consenting to the removal of this lawsuit and agreeing to severance of the personal injury claim from the employment claims. (Def Keek's Joinder in Def. Haven's Partial Opp'n Pl.'s Mot. Remand, ECF No. 17 ("Keek's Joinder").) Keck disagrees that the personal injury claim against her should be remanded, and she requests it remain in this court based on diversity jurisdiction under 28 U.S.C. § 1332. (Keek's Joinder, at 2.)

In response, Perket argues Keek's late partial joinder was not equivalent to a timely consent to removal and consequently, the Notice did not meet the requirements for removal. (Pl.'s Reply Def. Keek's Late Resp. Mot. Remand, ECF No. 20 ("Perket's Reply to Keck"), at 1-2.) Therefore, Perket argues, the lawsuit against both parties should be remanded, and Keek's untimely request should be denied. (Id.) Haven replies the removal was not defective, Keek's consent was not untimely, and even if consent were required by a certain deadline, the Ninth Circuit allows a lack of unanimous consent to be cured by joinder prior to judgment. (Def. Haven's Reply Def. Keek's Late Resp. Mot. Remand ("Haven's Reply"), ECF No. 23, at 2.)

Legal Standard

A civil lawsuit filed in a state court may be removed to federal court if the claim is one "arising under" federal law thus raising a "federal question." 28 U.S.C. § 1441(b); Home Depot U.S.A., Inc., __ U.S.__, 139 S.Ct 1743, 1754 (2019) ("Federal courts have 'federal question jurisdiction' ... if the plaintiff alleges violations of federal statute."). Whether a claim "arises under" federal law for removal purposes is determined by the "well-pleaded" complaint rule. Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998). Under that rule, the plaintiffs complaint must, on its face, raise a federal question. Caterpillar Inc. v Williams, 482 U.S. 386, 392 (1987). When it does, claims forming "the same case or controversy" as the claim arising under a federal question fall under the court's supplemental jurisdiction. 28 U.S.C. § 1367(a). Otherwise, claims fall under the court's diversity jurisdiction when the amount in controversy exceeds $75,000, and the lawsuit is between citizens of different States. 28 U.S.C. § 1332(a).

When the district court has federal question jurisdiction, defendants may remove the lawsuit from state court to the district court where the lawsuit is pending. 28. U.S.C. §§ 1331, 1441(a), (c). Removal procedure for lawsuits based on federal question jurisdiction is governed by 28 U.S.C. § 1446(b) which states in pertinent part:

(b) Requirements; generally .-

(1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

(2)(A) When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.

"Except as otherwise expressly provided by Act of Congress, any 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." 28 U.S.C. § 1441(a).

When lawsuits encompass state law claims and federal law claims, removal procedure is modified by 28 U.S.C. § 1441, which states in pertinent part: (1) If a civil action includes -

(A) a claim arising under the Constitution, laws, or treaties of the United States (within the meaning of section 1331 of this title), and

(B) a claim not within the original or supplemental jurisdiction of the district court or a claim that has been made nonremovable by statute, the entire action may be removed if the action would be removable without the inclusion of the claim described in subparagraph (B).

(2) Upon removal of [a claim arising under the Constitution, laws, or treaties of the United States], the district court shall sever from the action all claims described in paragraph (1)(B) and shall remand the severed claims to the State court from which the action was removed. Only defendants against whom a claim described in paragraph (1)(A) has been asserted are required to join in or consent to the removal under paragraph (1).

28U.S.C. § 1441(c)(1)-(2).

The removal statute is strictly construed and any doubt about the right of removal is resolved in favor of remand. Gaits v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The presumption against removal jurisdiction means "the burden [of establishing a lawsuit falls under federal jurisdiction] is particularly stringent for removing defendants." Corral v. Select Portfolio Serv., Inc., 878 F.3d 770, 773 (9th Cir. 2017). When the pleadings and the plaintiffs "well-pleaded" complaint make clear the cause of action is created by or "the plaintiffs right to relief necessarily depends on the resolution of a substantial question of federal law," the defendant has met its burden and removal is proper. Franchise Tax Bd. of Calif., 463 U.S. 1, 27-28 (1983).

A plaintiff who believes a lawsuit has been improperly removed to federal court may file a motion to remand to challenge the removal. Atl. Nat. Trust, LLC v. Mt. Hawley Ins. Co., Nos. 09-6054-TC, 09-6049-TC, 2009 WL 2365541, at *2 (D. Or. July 31, 2009). If the motion to remand is based on any defect other than lack of subject matter jurisdiction, it must be made within thirty days from the date the notice of removal was filed. 28 U.S.C. § 1447.

If, up to one year from the date of the initial filing, relevant aspects of a lawsuit have changed so that diversity jurisdiction would be appropriate, defendants may remove the lawsuit from state court to the district court where the lawsuit is pending. 28. U.S.C. §§ 1331, 1441(a)- (c). Removal procedure based on diversity question jurisdiction is governed by 28 U.S.C. § 1446(b)-(c) which grants an exception to the thirty-day deadline for filing for removal. It states in pertinent part:

(b) Requirements; generally.-

(3) Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of 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.

(c) Requirements; Removal Based on Diversity of Citizenship.-

(1) A case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred by section 1332(a) more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.

28 U.S.C. § 1446(b)(3)-(c)(1) (2018).

Discussion

Haven contends removal under 28 U.S.C. § 1441 is proper and subsection (c) requires the court to sever Perket's personal injury claim under state law from the ADA and related employment claims. (Notice 3.) Perket argues the claims against Keck and Haven are "inherently interwoven," so Keck was required to timely join removal and her failure to do so rendered Haven's removal procedurally defective, warranting remand of the lawsuit and denial of severance. (Motion 4-5.) Perket adds her choice of forum is entitled to deference. (Id. at 5.) Haven asserts Keek's late consent cured any procedural defect, and Haven and Keck argue severance is proper because the employment-related claims do not arise from the same controversy as the auto-related claims. (Haven's Reply 1-3, 4; Keek's Joinder 1-2.) Finally, Keck argues her severed auto case should remain in federal court on the basis of diversity jurisdiction under 28 U.S.C. § 1332 because Perket is an Oregon resident, Keck is a Texas resident, and the amount in controversy exceeds $75,000. (Keek's Joinder 2.)

I. Jurisdiction

A. Haven's Removal was Proper

1. This court has jurisdiction over the employment law claims

The court has federal question jurisdiction over the ADA claim and supplemental jurisdiction over the related employment claims. When lawsuits comprised of claims falling under federal question and supplemental jurisdiction are filed in state court, defendants may file for removal of those claims which arise under federal law and of the related claims over which the court has supplemental jurisdiction. 28 U.S.C. § 1441(a), (c)(1). Here, the parties do not dispute the ADA claim and related employment claims form "part of the same case or controversy," and it is evident from the face of the Complaint the ADA claim raises a federal question. Additionally, the other employment claims arise from a "common nucleus" of facts warranting supplemental jurisdiction. See infra Part B.

2. Keek's consent was not required for Haven's Notice

The parties disagree whether Keek's late consent created a procedural defect which defeats removal. One point of disagreement is whether unanimous consent is always required under the Federal Jurisdiction and Venue Clarification Act of 2011 ("JVCA"), or whether consent is required only from parties named in the federal-question claim. See JVCA, Pub. L. No. 112-63, tit. I, § 103(a)-(b), 125 Stat. 759 (2011) (codified as amended at 28 U.S.C. §§ 1441, 1446). Perket contends Congress limited removal when it codified the common law unanimity consent rule through the JVCA in 28 U.S.C. § 1446 and these changes "eliminated the District Court's discretion in deciding all state and federal law questions." (Reply Mem. Supp. PL's Mot. Remand, ECF No. 16 ("Perket's Reply to Haven"), at 3.) Haven points to 28 U.S.C. § 1441(c)(2) and contends Keck was not required to join the removal because the statute instructs "[o]nly defendants against whom [a claim giving rise to federal-question jurisdiction] has been asserted are required to join in or consent to the removal." (Def. Haven's Partial Opp'n Pl.'s Mot. Remand, ECF No. 13 ("Haven's Partial Opp'n"), at 2 (quoting 28 U.S.C. § 1441(c)(2).) Haven also points to Miller v. Or. Racing Comm'n, No. 3:15-CV-0030-PK, 2016 WL 4157313, at *1 n.2 (D. Or. Aug. 2, 2016), wherein the non-consenting defendants' consent was unnecessary "because the liability of those defendants [was] not alleged in connection with any claim over which this court [had] original jurisdiction."

Perket is correct that the JVCA codified the unanimity consent rule, and that Congress intended "to eliminate confusion surrounding the timing of removal when defendants are served at different times" and to ensure "[f]airness to later served defendants." H.R. Rep. No. 112-10, at 13-14 (2011) (emphasis omitted) (discussing the proposed amendments to Section 1446 for removal of civil lawsuits in multiple-defendant cases). Perket is also correct that generally all properly joined and served defendants must join in the removal. However, 28 U.S.C. § 1441(c)(2), also amended by the JVCA, specifies a circumstance where unanimous consent is not required. When federal law claims and state law claims have been joined and a defendant named in the federal claim seeks to remove, "[o]nly defendants against whom" federal law claims are asserted need consent, and the state law claim may be severed. 28 U.S.C. § 1441(c)(2). This is because Congress

intended to make changes to better serve the purpose for which the statute was originally designed, namely to provide a Federal forum for the resolution of Federal claims that fall within the original jurisdiction of the Federal courts. This sever-and-remand approach is intended to cure any constitutional problems while preserving the defendant's right to remove claims arising under Federal law.

H.R. Rep.No. 112-10, § 103, at 12 (2011).

Keck is not a named defendant to the claim giving rise to federal question jurisdiction- the ADA claim- and, therefore, her consent was not needed for removal of the lawsuit. Accordingly, Keek's consent was not required to remove the ADA and related employment claims, there was no procedural defect with Haven's removal, and Perket's motion to remand should be denied.

3. Even if Keek's consent was required, the defect has been cured

Keek's late joinder cured the procedural defect created by Haven's non-unanimous removal. As noted above, Perket contends Haven's removal of the employment lawsuit is procedurally defective because Keck did not join the Notice when it was filed or within the thirty days after. (Perket's Reply to Keck 9.) In response, Haven correctly observes that failure to obtain consent can be cured. (Haven's Reply 2.)

Though each properly-served defendant is required by 28 U.S.C. § 1446(b)(2)(A) to join in the removal within thirty days of the receipt of the pleading on which removal jurisdiction is based, the Ninth Circuit has repeatedly held defects in removal can be cured before judgment. See, e.g., Parrino v. FHP, Inc. 146 F.3d 699, 703 (9th Cir. 1998) (allowing a defendant to cure the defect and join the removal notice two months late "[b]ecause . . . remand on procedural grounds would be an empty formality"); Soliman v. Philip Morris Inc., 311 F.3d 966, 956-57 (9th Cir. 2003) (explaining the district court may, if all defendants have not joined the petition for removal, "allow the removing defendants to cure the defect by obtaining joinder of all defendants prior to the entiy of judgment").

Despite Keek's late consent, the defect has been cured. Haven filed the Notice on February 16, 2021. More than thirty days later, on March 15 and 16, 2021, Keek's attorneys filed notices of appearance, and more than thirty days after that, on April 21, 2021, Keck consented to the removal of the lawsuit. (Notice of Appearance, ECF No. 15; Keek's Joinder; Fujioka Decl., at 1-2.) Because more than thirty days had passed from the service of the Notice, Keek's consent was late. Nevertheless, because Keck consented to removal before judgment, the defect in the removal has been cured.

4. Haven properly removed the ADA claim and related employment claims

A motion to remand is the proper method for challenging removal. Atl. Nat, Trust, 2009 WL 2365541, at *2. The court strictly construes 28 U.S.C. § 1441 against removal jurisdiction; any doubt about the propriety of removal is resolved in favor of remand. Libhart, 592 F.2d at 1064. However, as explained above, when defects in the removal have been cured and the removing defendant has established the propriety of federal jurisdiction, the lawsuit may be removed. See Destifino v. Reiswig, 630 F.3d 952, 956-57 (9th Cir. 2011). Under 28 U.S.C. § 1441, Keek's consent was not required for Haven's Removal Notice. In addition, Keek's late consent cured any unanimity of consent issue in the Removal Notice. Therefore, there is no procedural ground for remand and Perket's motion to remand the lawsuit should be denied.

B. The Court Lacks Supplemental Jurisdiction over the Personal Injury Claim

The parties dispute whether supplemental jurisdiction over the personal injury claim is appropriate. Perket reasons the state law personal injury claim and employment claims arise from "inherently interwoven" operative facts which warrants the court's supplemental jurisdiction, denial of severance, and remand of the entire lawsuit due to the lack of unanimous consent. (Motion, at 3, 5; accord Perket's Reply to Haven 3-7 (emphasis omitted).)

When a claim over which a federal court has original jurisdiction is joined with a state law claim that does not "derive from a common nucleus of operative fact," exercise of supplemental jurisdiction is not wan-anted. United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966); Hutchinson on Behalf of Baker v. Spink, 126 F.3d 895, 902 (7th Cir. 1997) (finding the link between alleged constitutional claims and state tort claims "too weak to support supplemental jurisdiction"); McNair v. Oregon, Case No. 2:16-cv-00871-SB, 2018 WL 3371595, at *2 (D. Or. Apr. 18, 2018) (finding supplemental jurisdiction unwarranted when one claim's only similarity to the other claims was it arose out of the same injury), adopted by 2018 WL 3364667 (D. Or. July 9, 2018). "[W]here there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions" the claims form a single case or controversy; where there are distinct wrongs arising from tenuously linked facts, the claims form different cases. Am. Fire & Casualty Co. v. Finn, 341 U.S. 6, 14 (1951).

This lawsuit involves a personal injury claim against Keck arising out of a car accident and four employment-related claims against Haven. (Compl.) The personal injury claim against Keck arises from the injuries Perket sustained "to her back, neck, shoulders, and hips, as well as headaches and general soreness" after she was allegedly "bounced back and forth" during a car accident. (Compl. ¶ 5.) In addition, the claim seeks redress for Perket's alleged "stress, anxiety, and a general interference with her ability to conduct her life" due to her injury. (Id.) The employment claims against Haven arise from the harm Haven allegedly caused when the company breached its employment contract with Perket; willfully failed to pay the sums owed to her; terminated her on the basis of her disabilities, resulting in lost income and benefits, emotional pain, suffering, inconvenience and mental anguish; and terminated her because of her pregnancy, resulting in lost income and benefits, and emotional pain, suffering, inconvenience, and mental anguish. (Compl. ¶¶ 12-27.) Not only are the damages attributable to events entirely unrelated to each other and separated by a significant period of time, the actions giving rise to them were committed by unrelated parties whose conduct falls under completely different legal theories. The wrongs Haven allegedly inflicted are distinct from those Perket allegedly inflicted. Accordingly, supplemental jurisdiction over the personal injury claim against Keck is not warranted.

II. Severance of the Claim Against Keck from the Claims Against Haven is Proper

As discussed above, Haven and Keck seek severance and assert the auto-related claim does not "arise from the same set of operative facts" as the employment claims. (Haven's Reply 3; Keek's Joinder 1-2.) Haven reasons the claims are "very different" and "involve different time periods, different witnesses, and different legal standards." (Haven's Reply 8.) Perket argues against severance because Haven's "requested splitting of Ms. Perket's cause of action unduly prejudices her claims, disregards Plaintiffs choice of forum, and wastes judicial resources" and because her "claims are all part of the same plight and controversy." (Pl.'s Mot. 1; see also Perket's Reply to Haven 4-7.) Perket contests the differences identified by Haven and maintains the claims "are all common civil claims without undue complexity," the time periods overlap, "the witnesses will largely be the same," the legal standard for all claims is preponderance of the evidence, and notes "the law is a 'seamless web.'" (Perket's Reply 5-6, 5 n.4.)

The legislature proposed and passed the FJVCA of 2011 amending 28 U.S.C. § 1441 in light of circumstances where federal courts construed removal strictly and remanded entire cases made up of federal and state law claims, "thereby defeating access to federal court." H.R. Rep. No. 112-10 § 103, at 12 (2011); JVCA, tit. I, § 103(a) (codified as amended at 28 U.S.C. § 1441(c)(2)). Now, when a federal question claim is joined with related and unrelated state law claim(s), and the federal question and related claims are removed to district court, the court may sever all claims not within the court's original or supplemental jurisdiction. 28 U.S.C. § 1441(c)(2); Stewart v. Lewis, 2:19-cv-00847-NR, 2019 WL 4267387, at *1 (W.D. Pa. Sept. 10, 2019) (finding severance proper in a lawsuit comprised of a personal injury claim under state law and employment claims under federal law); Home Depot, __U.S.__, 139 S.Ct. at 1753 ("In these hybrid cases, § 1441(c)(2) allows the federal claims to be removed while the state-law claims are severed and sent back to state court.").

As discussed above, claims that do not "derive from a common nucleus of operative fact," do not warrant exercise of supplemental jurisdiction. United Mine Workers of America, 383 U.S. at 725; Hutchinson on Behalf of Baker, 126 F.3d at 902 (finding the link between alleged constitutional claims and state tort claims "too weak to support supplemental jurisdiction"); McNair, 2018 WL 3371595, at *2 (finding supplemental jurisdiction unwarranted when one claim's only similarity to the other claims was it arose out of the same injury), adopted by 2018 WL 3364667.

Similarly, courts have long held claims arising from different wrongs inflicted on the plaintiff are transactionally unrelated and may be severed. Id., at 13. Under Federal Rule of Civil Procedure 21, "on motion or on its own, the court may at any time, on just terms, add or drop a party." Fed.R.Civ.P. 21.

Finally, though Perket raises the principle of deference to plaintiffs choice of forum, the "well pleaded" complaint rule makes plaintiff the "master of the claim" for removal jurisdiction purposes. Because a lawsuit is only removable when the face of the plaintiffs complaint raises a federal question, "the party who brings a suit is master to decide what law he will rely upon." Caterpillar Inc., 482 U.S. at 392 n.7. Perket could have avoided the federal forum by opting not to assert the ADA claim against Haven. Because she chose to seek relief based on a federal question, Haven has the right to seek the jurisdiction of a federal forum. Accordingly, Perket's claim against Keck should be severed from the employment-related claims against Haven.

III. The Court May Retain Diversity Jurisdiction over the Claim Against Keck

Perket argues "Keek's late request to remain in Federal Court[] is contrary to [Haven]'s suggestion that Perket's claims against Keck are beyond the original or supplemental jurisdiction of the Court." (Perket's Reply to Keck 1.) However, Keek's request to remain in federal court was not based on original or supplemental jurisdiction. Keck requested the severed personal injury lawsuit remain in this court because "had Plaintiff filed an action only against Ms. Keck, the District Court would have diversity jurisdiction under 28 U.S.C. § 1332 since there would be complete diversity between the litigants (Plaintiff, an Oregon resident; and Ms. Keck, a Texas resident) and the amount in controversy exceeds $75,000." (Keek's Joinder 2).

This is a unique circumstance in which two procedural processes for removal are simultaneously before the court. The first is prescribed by 28 U.S.C. § 1441(c): once a state-law claim has been severed from a federal-question claim, the state-law claim is remanded to state court. 28 U.S.C.§1441(c). The second is prescribed by 28 U.S.C. § 1446: when a lawsuit is in state court and a defendant receives an initial pleading or "an amended pleading, motion, order or other paper" that reveals the lawsuit "is or has become removable," that defendant has thirty days to file for removal on the basis of diversity jurisdiction. 28 U.S.C. § 1446(b)(1), (3); Noyes v. Universal Underwriters Ins. Co., 3 F.Supp.3d 1356, 1363 (M.D. Fla. 2014) ("A case becomes removable once the non-diverse defendant is formally dismissed from the case."); Maseda v. Honda Motor Co., Ltd., 861 F.2d 1248, 1252 (11th Cir. 1988) (explaining a "nondiverse defendant must be formally dismissed from the case to permit a subsequent removal.").

To establish diversity jurisdiction, a defendant must show by a preponderance of the evidence the parties were diverse at the time the complaint was filed and the amount in controversy exceeds $75,000. Nw. Pub. Commc 'ns Council ex rel. Or. v. Qwest Corp., 877 F.Supp.2d 1004, 1011 (D. Or. 2012) ("The party seeking removal bears the burden of establishing by a preponderance of the evidence that all removal requirements are met."); Strotek Corp. v. Air Transport Ass 'n. of Am., 300 F.3d 1129, 1131-31 (9th Cir. 2002) (explaining "the core principle of federal removal jurisdiction on the basis of diversity [is] that it is determined (and must exist) as of the time the complaint is filed and removal is effected"). The Ninth Circuit has recognized "numerous courts treat a person's residence as prima facie evidence of the person's domicile" and the court is "permitted to make reasonable inferences from facts in evidence" when considering residency. Mondragon v. Capital One Auto Finance, 736 F.3d 880, 886 (2013).

If this court's recommendation to sever the claims against Keck and Haven is adopted, the lawsuit against Keck will become removable based on diversity jurisdiction. Haven's presence defeats complete diversity because Haven is an Oregon corporation. However, once the lawsuits have been severed, Keck has thirty days to file for removal and establish diversity jurisdiction over the personal injmy lawsuit. Because Keck's Partial Joinder is functionally a Motion to Remove, it was filed well within the thirty-day deadline. There is no question the amount in controversy in the claim against Keck exceeds $75,000. This leaves only the complete diversity requirement. Though Perket asse1is Keck is a "non-diverse defendant[]," she has provided no evidence to support her asse1iion. (Perket's Reply to Keck 2.) Conversely, Keck asse1is she is a Texas resident and evidence in the record shows she was served in Texas "at home." (Keck's Joinder 2; Aff. Service to Keck 1.) Therefore, Keck has established by a preponderance of the evidence her domicile is Texas and diversity jurisdiction is warranted. Accordingly, the court should grant Keck's request to remain in this comi after the claims against her are severed from the claims against Haven.

Conclusion

For the reasons stated above, Perket's Motion (ECF No. 8) should be DENIED, Haven and Keck's request to sever should be GRANTED, and Keck's request to keep the severed personal injmy claim in this court should be GRANTED. If the A1iicle III Judge agrees with this recommendation, the court should direct the clerk to sever the claims asserted by Perket against Haven from the claim asserted by Perket against Keck, and Haven shall remain the sole defendant in Case No. 3:21-cv-00251-AC; direct the clerk to open a separate civil action by Perket against Keck, assign the new case to the judge to whom the instant case is assigned, and file a copy of the Complaint in the new case along with a copy of this Findings and Recommendation; and direct Perket to file amended complaints in both this action and the new action alleging claims against only the sole defendant in each case within thirty days of the date of the order adopting this Findings and Recommendation.

Scheduling Order

The Findings and Recommendation will be referred to a district judge for review. Objections, if any, are due within seventeen (17) days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.

If objections are filed, then a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.

Perket v. Keck

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Perket v. Keck

Perket v. Keck

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Perket v. Keck

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Perket v. Keck

Perket v. Keck

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