United States District Court, W.D. Washington, Seattle
ORDER OF REMAND
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff's Motion for
Remand and for Fees. Dkt. #12. Plaintiff argues that removal
to this Court was untimely because Defendant had notice that
this matter raised federal question jurisdiction both in the
original Complaint and in an opposition brief filed in state
court prior to removal. Id. Defendant responds that
its removal was timely because it occurred just 10 days after
the filing of an Amended Complaint where a federal cause of
action was asserted for the first time, and that
Plaintiff's “other paper” filed in state
court simply noted an intent to file a federal claim that did
not confer jurisdiction in this Court. Dkt. #16. The Court
has reviewed the parties' briefing, along with their
supporting exhibits, Plaintiff's Complaint and
Defendant's Notice of Removal. For the reasons set forth
herein, this matter is REMANDED to King County Superior
served Defendant's registered agent with the original
Summons and Complaint in this matter on December 15, 2016.
Dkt. #6-1 at 14. Plaintiff filed the Complaint on February
21, 2017, in the Superior Court of Washington for King
County. Dkt. #6-1 at 1-4.
then filed a Motion to Dismiss in that Court, noting that
Plaintiff had failed to allege any legal authority for the
relief sought in its Complaint, arguing that Plaintiff
appeared to be asserting a claim under the Employee
Retirement Income Security Act of 1974 (“ERISA”),
and seeking dismissal of the Complaint for lack of subject
matter jurisdiction. Dkt. #6-1 at 17-21. In its opposition to
the Motion to Dismiss, Plaintiff explained that it was not
suing under ERISA, but that “Northwest is
suing Imerys under Section 301(a) of the Taft-Hartley Act, 29
U.S.C. § 185(a), [also known as the Labor Management
Relations Act (“LMRA”), ] for a breach of
contract claim based on the CBA between Imerys and Teamsters
Local 760.” Dkt. #6-2 at 25 (emphasis added).
Ultimately, the state court ordered Plaintiff to file an
Amended Complaint setting forth a claim under Section 301 and
denied the motion to dismiss. Dkt. #6-3 at 34.
12, 2017, Plaintiff filed and served its Amended Complaint.
Dkt. #1-1. The Amended Complaint set forth a claim under
Section 301(a) of the LMRA. Defendant removed the action to
this Court on May 22, 2017. Dkt. #1. Defendant then filed a
Motion to Dismiss for failure to state a claim. Dkt. #11. The
instant Motion to Remand followed.
Subject Matter Jurisdiction
courts are courts of limited subject matter jurisdiction.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). When a case
is filed in state court, removal is proper if the Complaint
raises a federal question or where there is diversity of
citizenship between the parties and the amount in controversy
exceeds $75, 000. 28 U.S.C. §§ 1331 and 1332(a). It
is presumed, however, “‘that a cause lies outside
[the] limited jurisdiction [of the federal courts] and the
burden of establishing the contrary rests upon the party
asserting jurisdiction.'” Hunter v. Philip
Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (quoting
Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 684
(9th Cir. 2006) (per curiam) (citing Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994))
(alterations in original). This Court must order remand if
there is any defect which causes federal jurisdiction to
fail. 28 U.S.C. § 1447(c). The removal statutes are
construed restrictively, and any doubts about removability
are resolved in favor of remanding the case to state court.
Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.
1992). On a motion to remand, the removing defendant bears
the burden of establishing that removal was proper by a
preponderance of evidence. Id. at 567; Sanchez
v. Monumental Life Ins. Co., 102 F.3d 398, 403-04 (9th
Cir. 1996). However, this Court lacks discretion to remand a
case to the state court if the case was properly removed.
Carpenters S. Cal. Admin. Corp. v. Majestic Hous.,
743 F.2d 1341, 1343 (9th Cir. 1984), abrogated in part on
other grounds, Southern Cal. IBEW-NECA Trust Funds
v. Standard Indus. Elec. Co., 247 F.3d 920, 924 n.6 (9th
Timeliness of Removal
28 U.S.C. § 1446(b), a notice of removal must be filed
within 30 days of receipt of the initial pleading, or, if the
case stated by the initial pleading is not removable, within
30 days after receipt by the defendant, through service or
otherwise, of a copy of an amended pleading, motion, order or
other paper from which it may be first ascertained that the
case is one which has become removable.
reasons set forth by Defendant, the Court agrees that
Plaintiff's initial Complaint was not removable.
See Dkt. #16 at 4-6 Thus, the Court turns to
Plaintiff's argument that the removal was untimely
because its state court opposition brief is an “other
paper” which first disclosed the basis for federal
noted above, Plaintiff stated in its opposition to the motion
to dismiss in state court that it was suing Defendant under
Section 301(a) of the Taft-Hartley Act, 29 U.S.C. §
185(a), for a breach of contract claim based on the CBA
between Imerys and Teamsters Local 760.” Dkt. #6-2 at
25. That brief provided clear notice to Defendant that a
federal question was being raised by Plaintiff.
Defendant's argument that the brief merely reflected
“an intent” to raise a federal claim is not
persuasive. The Ninth Circuit has made clear that discovery
documents, briefing, and similar other items qualify as
“other paper” sufficient for a defendant to
ascertain that an action has become removable under §
1446(b)(3). See, e.g., Eyak Native Village v.
Exxon Corp., 25 F.3d 773, 779 (9th Cir. 1994);
Cantrell v. Great Republic Ins. Co., 873 F.2d 1249,
1255 (9th Cir. 1989). Likewise, so long as the “other
paper” reasonably reflects Plaintiff's claim, it
triggers the second thirty day removal period. See Babasa
v. LensCrafters, Inc., 498 F.3d 972, 975 (9th Cir.
2007). Accordingly, at the latest, Plaintiff's April 5,