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Fesko v. Equiant Financial Services Inc.

United States District Court, D. Arizona

April 30, 2019

Mammie Fesko, Plaintiff,
v.
Equiant Financial Services Incorporated, et al., Defendants.

          ORDER

          Dominic W. Lanza United States District Judge

         On April 22, 2019, the Court issued an order (“the Order”) questioning, among other things, whether Defendant Equiant Financial Services Inc.'s (“Equiant”) effort to remove this action from state court was premature. (Doc. 10.) Equiant and Plaintiff have now filed supplemental briefs addressing the issues raised in the Order. (Docs. 12, 13.) As explained below, the Court is not persuaded by the parties' arguments and will thus remand this action to state court.

         A. Background

         This lawsuit was originally filed in state court on August 1, 2018. (Doc. 1 ¶ 1.) The complaint asserts only state-law causes of action. (Id. ¶ 2.)

         On October 19, 2018, Equiant filed a motion to dismiss. (Id. ¶ 3.)

         On January 14, 2019, the trial court heard oral argument on the motion and then solicited supplemental briefing from the parties concerning whether one of the state-law causes of action was valid. (Id.)

         On January 28, 2019, Plaintiff filed her supplemental brief with the trial court and also filed a motion for leave to file an amended complaint. (Id.) The motion stated that Plaintiff wished to assert a new state-law claim (negligent hiring) as well as assert new federal claims for “civil rights violations under 42 U.S.C. §§ 1983, 1985(2), and 1986.” (Id. ¶ 4.)

         On February 27, 2019-before the trial court took any action on the motion for leave to amend-Equiant removed the case to federal court. (Doc. 1.) The notice of removal states this Court has subject matter jurisdiction under 28 U.S.C. § 1331 based on the “new claims of civil rights violations.” (Id. ¶ 7.)

         On March 6, 2019, the trial court issued an order purporting to grant Plaintiff's motion for leave to amend. (Doc. 12-1.) This order does not address whether the trial court still possessed jurisdiction to act upon the motion in light of Equiant's removal notice. (Id.)

         B. Equiant's Supplemental Brief (Doc. 12)

         The Order identified several cases holding that “removal on the basis of federal claims asserted in a motion to amend the complaint, prior to the court's ruling on the motion, is premature.'” Torres v. Chevron U.S.A., Inc., 2004 WL 2348274, *2 (N.D. Cal. 2004) (citation omitted). In its supplemental brief, Equiant argues these cases were incorrectly decided for two reasons.

         First, Equiant contends its position is supported by the plain language of the removal statute, 28 U.S.C. § 1446(b)(3). Specifically, Equiant argues that § 1446(b)(3) authorizes removal as soon as the defendant receives “a copy of an amended pleading, motion, order or other paper” demonstrating the case is removable. Equiant contends that “[g]laringly absent from the statute is any discussion about a need for the motion to be granted or the amended complaint to be filed.” (Doc. 12 at 2.)

         The Court respectfully disagrees. Although § 1446(b)(3) identifies several different categories of documents (including motions) that may trigger a right of removal, the statute also provides that this right comes into existence only if the particular document demonstrates “that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3) (emphasis added). Here, Plaintiff's motion for leave to file an amended complaint didn't show that the case “is or has become” removable. Instead, it merely reflected that the case might become removable in the future, depending on how the state court judge resolved the motion. See, e.g., Sullivan v. Conway, 157 F.3d 1092, 1094 (7th Cir. 1998) (“The statutory language that we quoted speaks of a motion or other paper that discloses that the case is or has become removable, not that it may sometime in the future become removable if something happens, in this case the granting of a motion [to amend] by the state judge. When the motion was granted, the case first became removable . . . .”).[1]Thus, although it may be possible for some types of motions to trigger a right of removal under § 1446(b)(3) as soon as they're served on the defendant, [2] the particular motion at issue in this case (Plaintiff's January 28, 2019 motion for leave to file an amended complaint) didn't have that effect.

         Second, Equiant identifies several district court decisions from outside the Ninth Circuit holding that “receipt of a motion to amend is sufficient to trigger the thirty-day removal window.” (Doc. 12 at 2-4.) According to Equiant, these decisions “establish[] that there is not one correct answer and the Court is free to adopt ...


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