Opinion
23-cv-06082-AMO
04-08-2024
BRANDEN A USSERY, et al., Plaintiffs, v. FORD MOTOR COMPANY, et al., Defendants.
ORDER GRANTING MOTION TO REMAND RE: DKT. NO. 15
ARACELI MARTÍNEZ-OLGUÍN UNITED STATES DISTRICT JUDGE
Before the Court is Plaintiff Branden Ussery's motion to remand. The matter is fully briefed and suitable for decision without oral argument. Accordingly, the hearing set for May 9, 2024 is VACATED. See Civil L.R. 7-6. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the Court hereby GRANTS the motion, for the following reasons.
Ussery brought a lawsuit against Defendants Ford Motor Company (“Ford”) and The Ford Store San Leandro in the Superior Court of California, County of Alameda on September 29, 2023. Rogerson Decl. ¶ 4, ECF 1-2 (Ex. A). Ussery served Ford, id., ECF 1-10 (Ex. I), and The Ford Store San Leandro on October 6, 2023, id., ECF 1-9 (Ex. H). On October 26, 2023, Ford received a copy of the Retail Installment Sales Contract (“RISC”) from the selling dealership, Future Ford of Concord, and determined the purchase price of the subject vehicle and the amount in controversy. Rogerson Decl. ¶¶ 7-8. Ford removed the case to federal court on November 22, 2023. ECF 1. Ussery moved to remand the case on December 22, 2023. ECF 15.
Future Ford of Concord is not a party in this lawsuit.
Ussery argues that remand is proper because Ford's removal was untimely, The Ford Store San Leandro did not consent to removal, and Ford failed to establish an amount in controversy exceeding $50,000 for its Magnuson-Moss Warranty Act claim. Because the Court finds that Defendant The Ford Store San Leandro did not consent to removal, the Court does not consider timeliness or the amount in controversy.
To contest remand, Ford argues that “[as] Plaintiffs' cause of action for violation of the Magnuson-Moss Act is against Ford only, the Ford Store San Leandro's consent is not required.” ECF 16 at 7. Ford cites no caselaw in support of this argument, and the Court cannot agree.
“The removal statute is strictly construed, and any doubt about the right of removal requires resolution in favor of remand.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009). “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.” 28 U.S.C. § 1446(b)(2)(A); see Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1225 (9th Cir. 2009) (citation omitted) (“[A]ll the defendants must join in the application” for removal). Here, The Ford Store San Leandro was properly served on October 6, 2023, prior to Ford's notice of removal. Rogerson Decl., Ex. H. The Ford Store San Leandro did not join or consent in the removal of the action. See ECF 1. Thus, removal was improper. Moreover, Ford does not state in its Notice of Removal that The Ford Store San Leandro consented in removal. See Proctor, 584 F.3d at 1225 (“One defendant's timely removal notice containing an averment of the other defendants' consent and signed by an attorney of record is sufficient.”); see, e.g., TPCO U.S. Holding, LLC v. Fussell, No. 23-CV-01324-EMC, 2023 WL 4312571, at *4 (N.D. Cal. July 3, 2023) (remanding case to state court where “[r] emoving Defendants failed to obtain or aver the consent of all defendants . . . [prior to removal where] the Other Named Defendants were properly joined and served in the initial Complaint, and thus were required to have either joined in or consented to the Notice of Removal but failed to do so”). Accordingly, removal was improper.
For the reasons set forth above, the Court hereby GRANTS Plaintiff's motion to remand this case to California Superior Court. The Clerk SHALL transmit the file to the County of Alameda and close the file in this Court.
IT IS SO ORDERED.