United States District Court, D. Arizona
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 ...