Opinion
No. CIV. S-06-1785 FCD/GGH.
October 2, 2006
MEMORANDUM AND ORDER
This matter is before the court on defendant/cross-complainant Simon Preciado's ("Preciado") motion to remand. By the motion, Preciado seeks an order of remand on the ground that plaintiff/cross-defendant Progressive West Insurance Company ("Progressive") untimely removed the instant action on the basis of Preciado's amended cross-complaint as his original cross-complaint was removable on the basis of diversity of citizenship. In opposition to the motion, Progressive contends it timely removed the action because (1) Preciado's claims in the original cross-complaint did not meet the requisite $75,000 amount in controversy threshold for federal diversity jurisdiction; and (2) the amended cross-complaint alleged for the first time a class action claim pursuant to the Class Action Fairness Act, 28 U.S.C. § 1453, thus providing independently, federal question jurisdiction over the case.
Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. See E.D. Cal. Local Rule 78-230(h).
The court summarily GRANTS Preciado's motion but for a wholly different reason (not raised or discussed by either party). As the plaintiff in the state court action, Progressive cannot remove the instant action. The right of removal is vested exclusively in defendants. "A plaintiff who has chosen to commence an action in state court cannot later remove it to federal court, even to defend against a counterclaim."Abdullah v. City of San Francisco, 1995 WL 225701 (N.D. Cal. Mar. 3, 1995) (emphasis added) ( citing Southland Corp. v. Estridge, 456 F. Supp. 1296, 1300 (C.D. Cal. 1978) [holding that a plaintiff could not subsequently remove an action to federal court upon being served with a class action counterclaim]). A plaintiff "who also becomes a counterdefendant should not have . . . two chances to pick the forum." Southland Corp., 456 F. Supp. at 1301. Accordingly, based on this clearly established rule, Progressive improvidently removed this action on the basis of Preciado's cross-complaint.
The rule was initially set forth by the United States Supreme Court in Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100, 105-06 (1941) (interpreting former removal statute, 28 U.S.C. § 71).
As such, the court orders the instant action REMANDED to the Superior Court of the State of California, County of Yolo.
IT IS SO ORDERED.