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Pix v. Alper

United States District Court, W.D. Washington, Seattle

August 12, 2014

MICHI PIX, Plaintiff,
STEVE ALPER, et al., Defendants.


JAMES L. ROBART, District Judge.


This matter comes before the court on a flurry of motions and other filings by the parties to this case. ( See Dkt. ## 8, 9, 10, 11, 12, 17.) In short, the parties disagree as to whether this case should be in state court, federal court, or arbitration. Having considered the submissions of the parties, the balance of the record, and the relevant law, and no party having requested oral argument, the court GRANTS Plaintiff's motion to remand (Mot. (Dkt. # 9)) and STRIKES all other pending motions (Dkt. ## 8, 10, 12) as moot.


Plaintiff Michi PIX is a movie production company. (Compl. (Dkt. # 1-2) ¶ 2.1.) Michi PIX entered into a contract with Defendant Scrappy Dog Productions ("Scrappy Dog") to edit a film. ( Id. ¶ 4.1; Ex. 1 ("Contract").) Defendants Steve Alper and Timothy Robinson were partners in Scrappy Dog who produced scripts, including the film at issue in this case. ( Id. ¶¶ 2.2-2.4.) Over the course of editing the film, Michi PIX received conflicting instructions from the two partners, who increasingly disagreed over the creative direction the film should take. ( Id. ¶¶ 4.5-4.5.) Michi PIX claims that it is still owed payment for the editing work it performed on the film. ( Id. ¶¶ 4.6-4.7.) Moreover, Michi PIX claims that, as the partners' relationship soured, Michi PIX received and continues to receive conflicting instructions as to who owns the drives that contain the final version of the film. ( Id. ¶ 4.8.) Accordingly, Michi PIX decided to retain possession of the drives until it received payment of the full amount it is owed for its editing work. ( Id. ¶ 4.7.)

Last year, Mr. Alper filed an action in California state court against Maria Gargiulo, a principal of Michi PIX and the director of the film, seeking possession of the drives. ( Id. ¶ 4.9, Ex. 3; see also Calif. Docs (Dkt. # 8-1).) In that action, Mr. Alper alleged sole ownership of the film even though he had previously represented that he and Mr. Robinson were co-owners of the project. (Compl. ¶¶ 4.10-11.) Ms. Gargiulo explained that the tapes were in the possession of Michi PIX, not her. ( See Gargiulo Decl. (Dkt. # 18-1) at 3.) Because the contract between Michi PIX and Scrappy Dog requires that conflicts between those two parties be resolved by binding arbitration ( see Contract at 2), the California state court stayed Mr. Alper's action until arbitration between Michi PIX and Scrappy Dog was complete. ( Id. ¶ 4.12, Ex. 5.)

Michi PIX then filed this action in interpleader against Scrappy Dog, Mr. Alper, and Mr. Robinson in King County Superior Court, requesting a judicial determination of (1) which defendant was entitled to possession of the drives and (2) with which party Michi PIX should arbitrate to receive payment for its editing work. ( Id. ¶ 1.1.) Mr. Alper was served with the complaint on May 22, 2014. ( See Not. of Rem. (Dkt. # 1-1).) Appearing pro se and in forma pauperis, he removed the action to this court and then filed a motion to dismiss and to compel arbitration. ( Id.; Dkt. # 8.) Shortly thereafter, Michi PIX filed a motion to remand the case. ( See Mot.) In addition, Mr. Robinson, also appearing pro se, filed two "Declarations in Opposition" testifying that he does not consent to removal of the case to federal court. ( See 1st Robinson Decl. (Dkt. # 11) ¶ 5; 2d Robinson Decl. (Dkt. # 17) ¶ 2.)

On July 16, 2014, in an attempt to rectify deficiencies identified by Michi PIX's motion to remand, Mr. Alper filed an "Amended Notice of Removal of Action, " in which he purported to "hereby amend[] the removal of action pursuant to 28 U.S.C. 138 & U.S.C. 144(b) which allows allows [sic] copyright cases to be removed regardless of citizenship and all defendant's approval." (Mot. to Am. (Dkt. # 10).) On July 21, 2014, Mr. Alper filed a "Notice of Correction" clarifying that his Amended Notice of Removal actually alleges that Mr. Alper and Mr. Robinson are citizens-not just residents-of California. (Not. (Dkt. # 12).)


The court finds that Michi PIX's motion for remand is dispositive of the issues raised by the parties' submissions to the court.

A. Removal Procedure

In general, a defendant may remove to federal court any state action over which a district court would have original jurisdiction. See 28 U.S.C. § 1441; Ansley v. Ameriquest Mortgage Co., 340 F.3d 858, 861 (9th Cir. 2003). If the case involves multiple defendants, all defendants must join in or consent to removal of the action. 28 U.S.C. § 1446(b)(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."); see also Destfino v. Reiswig, 630 F.3d 952, 956 (9th Cir. 2011) ("All defendants who have been properly served in the action must join a petition for removal.") (internal punctuation omitted); Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1224 (9th Cir. 2009). This rule is equally applicable to interpleader actions. See First Am. Title Co. v. Pathak, No. C 13-3947 SI, 2013 WL 6172741, at *3 (N.D. Cal. Nov. 25, 2013) (finding that removal was procedurally defective because one of the interpleader defendants did not consent); Adell v. Ilunga, No. CV 13-04103 DDP AJWX, 2013 WL 4016345, at *2 (C.D. Cal. Aug. 6, 2013) (same).

One exception to this "rule of unanimity" is that the rule does not apply to fraudulently joined or nominal defendants. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n.1 (9th Cir. 1988). A defendant is fraudulently joined "[i]f the plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state." Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1319 (9th Cir. 1998). Fraudulent joinder must be proven by clear and convincing evidence. Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007). The party charging fraudulent joinder bears the "heavy burden" of showing that the complaint "obviously fails" to state a claim. Hunter v. Philip Morris USA, 582 F.3d 1039, 1044 (9th Cir. 2009). All disputed facts and ambiguities must be resolved in favor of the plaintiff. Good v. Prudential Ins. Co. of Am., 5 F.Supp.2d 804, 807 (N.D. Cal. 1998); Stanbrough v. Georgia-Pac. Gypsum LLC, No. CV 08-08303GAF(AJWX), 2009 WL 137036, at *1 (C.D. Cal. Jan. 20, 2009). Because the court must construe the removal statute strictly against removal jurisdiction, jurisdiction will be rejected if there is any doubt as to the right of removal. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

Here, Mr. Alper's co-defendant, Mr. Robinson, did not join in Mr. Alper's notice of removal. ( See Not. of Rem.) Moreover, Mr. Robinson has unambiguously testified that he does not consent to removal of this action to federal court.[1] ( See 1st Robinson Decl. ¶ 5 ("I, Timothy Robinson, OPPOSE any change of venue to the Federal Court."); 2d Robinson Decl. ¶ 2 ("I OPPOSE any action to move the jurisdiction of this matter from the ...

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