Osanitsch

MEMORANDUM **

John Osanitsch sued Marconi, PLC and its subsidiary, Marconi Acquisition Sub., Inc., in Sonoma County Superior Court. Marconi removed the action to the Northern District of California. Osanitsch moved to remand, which the district court denied, and Marconi moved to dismiss based on an injunction previously entered by the Bankruptcy Court for the Southern District of New York pursuant to 11 U.S.C. § 304 , which the district court granted. Osanitsch appealed. We vacate the dismissal order, and remand.

While the district court correctly resolved one of the jurisdictional issues before it — whether the injunction itself precluded Marconi from removing or made its removal premature- — the court did not explicitly determine whether the removal petition was timely in light of when, and upon whom, service was effected. As Marconi acknowledged at oral argument, the record is not fully developed on this point. The issue also appears to be fact-dependent and may present a novel question of which rule, the first-served rule or the last-served rule, is applicable. Accordingly, to facilitate appellate review, and because the district court is in a better position to address…