1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ESMELDA DEL CARMEN CARAZO REYES, an individual, KLEYMER Case No. 2:25-cv-00257-AB-JPR 11 YOLIBETH CARAZO REYES, an individual, SEYDI MABEL CARAZO 12 REYES, an individual, ELVIN ORDER GRANTING PLAINTIFFS’ ISMAEL RODRIGUEZ ZUNIGA, an MOTION TO REMAND 13 individual, DUNIA MARIA RODRIGUEZ ZUNIGA, an individual, 14 KEDUIN FERNANDO VALLADARES RODRIGUEZ, an 15 individual, JUAN JOSE RODRIGUEZ GONZALEZ, an individual; AIDA 16 MARIA ZUNIGA VALLADARES, an individual; KESLER ARIEL 17 VALLADARES RODRIGUEZ, a minor, by and through his Guardian ad 18 Litem, JENNI NOEMI RODRIGUEZ,

ABNER NAHUN VALLADARES

19 RODRIGUEZ, a minor, by and through his Guardian ad Litem, JENNI NOEMI 20 RODRIGUEZ, and ROSA SARAHI VALLADARES RODRIGUEZ, a 21 minor, by and through her Guardian ad Litem, JENNI NOEMI RODRIGUEZ; 22 ESCARLETH DAYANA VALLADARES PLATA, a minor, by 23 and through her Guardian ad Litem,

GLENDA YAMILETH PLATA

24 SIERRA, and BRITANY SAMANTA VALLADARES CASTELLANOS, a 25 minor, by and through her Guardian ad Litem, CINDY MARIELA 26 CASTELLANOS CASTELLANO; MAXIMILIANO PAIZ CORDON, an 27 individual; and NOE EVELIO RODRIGUEZ CRUZ, an individual; 28 1 Plaintiffs, 2 v. 3

HARBOR FREIGHT TOOLS USA,

4 INC., a Delaware Corporation, and DOES 1 - 50, inclusive 5 6 Defendant. 7 8 Before the Court is Plaintiffs’ ESMELDA DEL CARMEN CARAZO REYES, 9 an individual; KLEYMER YOLIBETH CARAZO REYES, an individual; SEYDI 10 MABEL CARAZO REYES, an individual; ELVIN ISMAEL RODRIGUEZ 11 ZUNIGA, an individual; DUNIA MARIA RODRIGUEZ ZUNIGA, an individual; 12 KEDUIN FERNANDO VALLADARES RODRIGUEZ, an individual; JUAN JOSE 13 RODRIGUEZ GONZALEZ, an individual; AIDA MARIA ZUNIGA 14 VALLADARES, an individual; KESLER ARIEL VALLADARES RODRIGUEZ, a 15 minor, by and through his Guardian ad Litem, JENNI NOEMI RODRIGUEZ; 16 ABNER NAHUN VALLADARES RODRIGUEZ, a minor, by and through his 17 Guardian ad Litem, JENNI NOEMI RODRIGUEZ; and ROSA SARAHI 18 VALLADARES RODRIGUEZ, a minor, by and through her Guardian ad Litem, 19 JENNI NOEMI RODRIGUEZ; and ESCARLETH DAYANA VALLADARES 20 PLATA, a minor, by and through her Guardian ad Litem (collectively, “Plaintiffs’”) 21 Motion to Remand (“Motion,” Dkt. No. 13). Defendant Harbor Freight Tools USA, 22 Inc. (“Defendant”) filed an opposition and Plaintiffs filed a reply. Dkt. Nos. 16, 22. 23 For the following reasons, the Court GRANTS Plaintiffs’ Motion to Remand. 24 I. BACKGROUND 25 A. Incident From Which This Matter Arises 26 Plaintiffs’ Complaint alleges that on December 16, 2023, Bernardo Valladares, 27 Carlos Bernardo Valladares Reyes, and Milton Ismael Paiz Gutierrez died from 28 carbon monoxide poisoning while sleeping in their home in Kansas City, Missouri. 1 Fourteen of the plaintiffs are heirs of these decedents. Plaintiff Noe Evelio Rodriguez 2 Cruz was also in the home, was injured but survived, and is suing for her personal 3 injuries. The carbon monoxide allegedly came from a portable generator designed, 4 marketed, and sold by Harbor Freight Tools USA, Inc. 5 B. Removal to This Court 6 On January 8, 2025, Plaintiffs filed their Complaint along with applications and 7 proposed orders appointing Guardians ad Litem (“GAL”) for minor Plaintiffs, in Los 8 Angeles County Superior Court. On January 9, 2025, Defendant removed the action 9 based on diversity jurisdiction. At the time Defendant removed, they had not been 10 served with either the summons or a copy of the Complaint. 11 C. Plaintiffs Were Unable to Serve Defendant With the Summons or 12 Complaint. 13 Plaintiffs were unable to serve the summons or Complaint on Defendant 14 because the state court could not issue a summons until a GAL was appointed for all 15 of the minor Plaintiffs. See Cal Code Civ. P. § 373). On January 21, 2025, Judge 16 Cindy Panuco appointed GALs for four minor plaintiffs but notified Plaintiffs of a 17 deficiency in Abner Nahun Valladares Rodriguez’s application. On January 22, 2025, 18 Plaintiffs filed an amended application for GAL appointment for Abner Nahun 19 Valladares Rodriguez. This GAL application was still pending when Defendant 20 removed the action. 21 Plaintiffs now move to remand this action on the ground that Defendant 22 removed it in violation of the forum defendant rule. Defendant responds that the case 23 was properly removed arguing that the plain language of the statute permits “pre- 24 service removal.” 25 II. LEGAL STANDARD 26 A. Removal 27 Federal courts are courts of limited jurisdiction and possess only jurisdiction 28 authorized by the Constitution and federal statute. Kokkonen v. Guardian Life Ins. Co. 1 of Am., 511 U.S. 375, 377 (1994). Under 28 U.S.C. § 1441(a), a party may remove a 2 civil action brought in a state court to a district court only if the plaintiff could have 3 originally filed the action in federal court. Thus, removal is proper only if the district 4 court has original jurisdiction over the issues alleged in the state court complaint. 5 There is a strong presumption that the court is without jurisdiction until affirmatively 6 proven otherwise. See Fifty Assocs. v. Prudential Ins. Co. of America, 446 F.2d 1187, 7 1190 (9th Cir. 1970). Courts strictly construe § 1441 against removal jurisdiction. 8 Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Moreover, when an action is 9 removed from state court, the removing party bears the burden of demonstrating that 10 removal is proper. Id. 11 Under the diversity statute, 28 U.S.C. § 1332, a federal district court has 12 original jurisdiction when the parties are completely diverse and the amount in 13 controversy exceeds $75,000. See 28 U.S.C. § 1332. Pursuant to 28 U.S.C. § 1441(a) 14 and (b), a defendant may remove an action from state court to federal court if the 15 diversity and amount in controversy requirements are satisfied. Under 28 U.S.C. § 16 1441(b)(2), “[a] civil action otherwise removable solely on the basis of the jurisdiction 17 under section 1332(a) of this title may not be removed if any of the parties in interest 18 properly joined and served as defendants is a citizen of the State in which such action 19 is brought.” 28 U.S.C. § 1441(b)(2). 20 III. DISCUSSION 21 Plaintiffs seek to remand this case to state court, arguing that Defendant’s plain 22 language interpretation of 28 U.S.C. §1442(b)(2) would produce an absurd result if 23 applied, frustrating Congress’ legislative intent. Defendant responds that a plain 24 reading of §1442(b)(2) would not produce absurd results and instead serves the 25 purpose intended by Congress and therefore must be followed. 26 A. Forum Defendant Rule 27 Under 28 U.S.C. §1441, a defendant may remove a case from state to federal 28 court if a federal court would have original jurisdiction over the case, either in the 1 form of federal question jurisdiction under 28 U.S.C. §1331 or diversity jurisdiction 2 under 28 U.S.C. §1332. Section 1442(b)(2), known as the forum defendant rule, 3 restricts a defendant’s ability to remove a case to federal court based on diversity 4 jurisdiction. Under §1442(b)(2), “[a] civil action otherwise removable solely on the 5 basis of [diversity] jurisdiction ... may not be removed if any of the parties in interest 6 properly joined and served as defendants is a citizen of the State in which such action 7 is brought.” 28 U.S.C. §1442(b)(2). 8 The cases reflect a dispute as to the proper interpretation of the “properly joined 9 and served” language contained in the forum defendant rule. Defendants argue that a 10 plain reading of the statute allows for removal before the forum defendant has been 11 served with the complaint, while plaintiffs tend to argue that such a reading flouts 12 Congressional intent by producing an absurd result. Defendant’s argument in the 13 instant case follows the same vein, arguing that although it is a citizen of California, 14 removal was proper since it removed the action after the Complaint was filed and 15 before being served with the Complaint and summons. In other words, according to 16 Defendant, the forum defendant rule prevents removal only where the forum 17 defendant has been “properly joined and served,” and therefore, where, as here, a 18 forum defendant has not been served, the forum defendant rule does not prevent 19 removal. 20 B. Statutory Interpretation and the Absurdity Doctrine 21 To resolve disputes over the interpretation of statutes such as the forum 22 defendant rule, courts rely on principles of statutory construction. Statutory 23 interpretation begins with the text. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 24 710 F.3d 946, 958 (9th Cir. 2013); Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 25 438 (1999). Principles of statutory construction direct courts to seek a statute’s 26 meaning “in the language in which the act is framed, and if that is plain, and if the law 27 is ... [constitutional], the sole function of the courts is to enforce it according to its 28 terms.” Caminetti v. United States, 242 U.S. 470, 485 (1917). Statutory interpretation 1 is also balanced by the absurdity doctrine, which serves to prevent “absurd” results 2 when a court interprets or applies a statue based on its literal meaning. “Under rare 3 and unusual circumstances,” a court may “override the literal terms of a statute” where 4 applying a statute’s literal meaning leads to “absurd results” that “shock the 5 …common sense.” Crooks v. Harrelson, 282 U.S. 55, 59-60 (1930). Here, the 6 question is whether the literal application of the verbiage “properly joined and served” 7 produces absurd results such that this Court should override §1442(b)(2)’s otherwise 8 unambiguous text. 9 C. District Courts Are Split On The Permissibility of Pre-Service 10 Removal But Have Typically Elected To Remand Where The Facts 11 Resemble Those Here. 12 Neither the Supreme Court nor the Ninth Circuit has answered the question of 13 whether pre-service removal is proper. However, this is not a new issue to district 14 courts, which have ruled on this issue with varying outcomes based on their 15 interpretations of §1442(b)(2). District courts that denied remand applied the language 16 of §1442(b)(2) literally, permitting removal before a forum defendant had been 17 properly joined and served. District courts that have remanded have applied one of 18 two interpretations: (1) that the plain text of §1442(b)(2) required at least one 19 defendant to be served before removal, or (2) that permitting removal before plaintiff 20 had an opportunity to serve defendant did not align with §1442(b)(2)’s purpose. 21 Vallejo v. Amgen, Inc., 2013 WL 12147584, at *3 (C.D. Cal. Aug. 30, 2013); Gentile 22 v. Biogen Idec, Inc., 934 F. Supp. 2d 313, 316 (D. Mass. 2013); Dechow v. Gilead 23 Scis., Inc., 358 F. Supp. 3d 1051, 1055 (C.D. Cal. 2019). Here, the parties’ arguments 24 follow the same reasoning. This Court takes the position that permitting removal 25 before a plaintiff has had the opportunity to serve a forum defendant frustrates 26 §1442(b)(2)’s purpose and would produce an absurd result. 27 D. The Statute Contemplates That A Plaintiff Must Have An 28 Opportunity To Serve Defendant Before The Case Can Be Removed. 1 The line of decisions in this district where courts have remanded after finding 2 that a literal application of §1442(b)(2) would produce absurd results are persuasive, 3 especially when applied to the facts here. One such decision is Vallejo v. Amgen, Inc., 4 2013 WL 12147584 (C.D. Cal. Aug. 30, 2013), and this court adopts its analysis. In 5 Vallejo, the Court remanded to state court on the ground that a literal application of 6 §1442(b)(2), if applied to its particular facts, would have produced the absurd result of 7 allowing a defendant to remove a case to federal court where it would have been 8 impossible for plaintiff to meaningfully effect service on the defendant. Vallejo at *3. 9 In Vallejo, like here, the plaintiff was unable to effect service on the defendant 10 because the state court had withheld the summons until after defendant had removed 11 the case, making it literally impossible for the plaintiff to effect service. 12 Defendant asks this Court to deny the motion for remand based on Casola v. 13 Dexcom, Inc., 98 F.4th 947 (9th Cir. 2024), but Casola addressed a different question 14 than the one before this Court: whether the defendant could remove an action before 15 the complaint could be considered filed under state law. The statements Defendant 16 cites from Casola have to do with that issue—whether a defendant can remove an 17 action before it is considered filed—and not with whether pre-service removal is 18 permissible. In making their argument, Defendant cites to the following language 19 from Casola: “for the purposes of removability, an electronically submitted Complaint 20 is not ’filed’ in California state court until it is processed and endorsed or otherwise 21 acknowledged as officially filed by the clerk of the court” and further would normally 22 “become removable as of the filing date shown on the endorsement stamped on the 23 Complaint when it is entered into the court’s records.” Casola, 98 F.4th at 962. Since 24 the Ninth Circuit’s ruling in Casola addressed an entirely different issue than the one 25 presented here, Defendant’s reliance on the filing rules Casola discussed to justify the 26 timing of their removal is misplaced. 27 Additionally, reading further, it becomes clear that in Casola, the Court 28 contemplated preserving a plaintiff’s right to effect meaningful service on a defendant 1 before removal. In declining to apply the defendant’s reasoning, the Casola Court 2 expressed a concern for the effects of allowing snap-removal, stating, “adopting 3 Dexcom’s delivery-as-filing rule would effectively give in-forum defendants with 4 subscriptions to e-filing monitoring services a safe harbor in which to accomplish 5 snap removals unhindered by speedy service of process.” Id. 6 Defendant also points to this Court’s order in Dechow v. Gilead Sciences, Inc., 7 358 F. Supp. 3d 1051 (C.D. Cal. 2019), which found a defendant’s pre-service 8 removal proper. Defendant specifically points to this Court’s statement that 9 §1442(b)(2) is “clear and unambiguous” in support of their argument that pre-service 10 removal is allowed. Dechow, 358 F. Supp. 3d at 1054. However, Dechow was based 11 on a fact-specific inquiry that considered the possibility of an absurd outcome if 12 §1442(b)(2) were applied literally to different facts. In Dechow, the facts differed 13 greatly from those here. In Dechow, plaintiff had two weeks to effectuate service on 14 defendant and did not do so; therefore, the literal application of §1442(b)(2) would not 15 have deprived plaintiff of the opportunity to serve defendant with the complaint and 16 summons. Here, Plaintiff had no opportunity to effect service before Defendant 17 removed because Defendant removed one day after the complaint was filed, but 18 before it could be served, because the state court could not issue a summons until all 19 GALs were granted. Therefore, the reasoning by which this Court denied a motion for 20 remand in Dechow does not apply here. 21 E. Permitting Removal Before Plaintiffs’ Had The Opportunity To 22 Serve Defendant Produces An Absurd Result, Frustrating §1442(b)(2)’s 23 Purpose. 24 The facts of this case distinguish it from others that have addressed the issue of pre- 25 service removal. Here, Plaintiffs filed their Complaint on January 8, 2025, and 26 Defendant removed one day later, depriving Plaintiff of the opportunity to serve 27 Defendant. California Superior Court procedure requires that guardians ad litem be 28 appointed for all minor Plaintiffs named in the Complaint before the court could issue 1 | summons. At the time Defendant removed, no GALs had been appointed, thus no 2 | summons would have been issued, so it was impossible for Defendant to have been 3 | properly joined and served. Additionally, Defendant does not dispute Plaintiffs’ 4 | assertion that a summons could not be issued because not all GALs had been 5 | appointed. As such, the parties agree that it would have been impossible for Plaintiff 6 | to serve the Defendant before they removed. If defendants were permitted to remove a 7 | case before a plaintiff even had the opportunity to serve them, it would effectively 8 || circumvent Congress’ intent to provide plaintiff's the right to effect meaningful 9 | service and would render §1441(b)(2)’s “properly joined and served” language 10 | superfluous. Such a result could not have been intended by Congress. 11 | IV. CONCLUSION 12 For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion to Remand 13 | and REMANDS this action back to the state court from which Defendant removed it. 14 The Motion to Strike (Dkt. No. 11) and Motion to Transfer (Dkt. No. 12) are 15 | DENIED AS MOOT. 16 17 IT IS SO ORDERED. 18 19 | Dated: June 16, 2025 LI 20 (nh Co

UNITED STATES DISTRICT COURT JUDGE

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