1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RENAY PAINE, No. 2:19-cv-00771-JAM-DB 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION

TO REMAND AND REQUEST FOR

14 SUNFLOWER FARMERS MARKETS, ATTORNEYS FEES AND COSTS

LLC; SPROUTS FARMERS MARKET;

15 DOES 1 through 50, inclusive, 16 Defendants. 17 18 On August 20, 2018, Renay Payne filed a negligence suit 19 against Sunflowers Farmers Market, LLC and Sprouts Farmers 20 Markets in Sacramento County Superior Court. Compl., ECF No. 1- 21 1. In May of the following year, Defendants removed the case to 22 federal court. Notice of Removal, ECF No. 1 (citing 28 U.S.C. §§ 23 1332, 1441). Arguing Defendants’ removal was untimely, Plaintiff 24 filed a motion to remand the case to state court. Mot. to Remand 25 (“Mot.”) at 5-6, ECF No. 5. She also requests the Court award 26 her the costs and attorney fees incurred because of Defendants’ 27 removal. Id. at 6 (citing 28 U.S.C. § 1447). Defendants opposed 28 Plaintiff’s motion. Opp’n, ECF No. 6. Defendants maintain 1 removal was timely because they removed the case within 30 days 2 of learning it was removable, as required by 28 U.S.C. 3 § 1446(b)(2)(3). Opp’n at 3-6. Plaintiff did not file a reply. 4 For the reasons set forth below, the Court DENIES Plaintiff’s 5 motion to remand and request for attorney fees and costs. 6 7 I.BACKGROUND 8 On August 21, 2016, Plaintiff slipped and fell in the 9 produce aisle at Sunflower Farmers Market. Compl. ¶ 8. She 10 sustained “personal / bodily injuries, resulting in economic and 11 non-economic damages” as a result of the fall. Compl. ¶ 10. 12 Plaintiff attributes her fall to the “dangerous, defective and 13 hazardous condition” of the grocery aisle—specifically, the 14 placement of the grocery bins. Compl. ¶¶ 9, 11. 15 Prior to filing her complaint in August 2018, Plaintiff sent 16 an offer of settlement to Defendants. Mot. at 5. Plaintiff 17 requested $250,000. See Exh. D to Mot. On October 10, 2018, she 18 sent another letter to Defendants. Mot. at 5. The October 10 19 letter renewed Plaintiff’s earlier settlement offer. Id. 20 Plaintiffs attempted to send another letter on November 10—again, 21 renewing their $250,000 offer for settlement. Mot. at 6. 22 Defendants contend they never received the November 10 letter. 23 Opp’n at 4-5. The address block on the November 10 letter 24 misspelled defense counsel’s first name, abbreviated “Koeller, 25 Nebeker, Carlson & Haluck, LLP” as “KNCH, LLP,” and listed the 26 ZIP code for Cool, CA rather than the one for Irvine, CA. See 27 Exh. D to Mot., ECF No. 5-2. 28 Over the course of discovery, Plaintiff produced her 1 Statement of Damages. Richard Somes Decl. ¶ 13, ECF No. 6-1; see 2 also Exh. I to Opp’n, ECF No. 6-10. It claimed $1,000,000 in 3 damages. Id. Within thirty days of receiving Plaintiff’s 4 Statement, Defendants removed the case to federal court. 5 6 II. OPINION 7 A. Judicial Notice 8 Rule 201 of the Federal Rules of Evidence allows a court to 9 take judicial notice of an adjudicative fact that is “not 10 subject to reasonable dispute,” because it (1) “is generally 11 known within the trial court’s territorial jurisdiction”; or (2) 12 “can be accurately and readily determined from sources whose 13 accuracy cannot reasonably be questioned.” Fed. R. Evid. 14 201(a)-(b). A court may take judicial notice of matters of 15 public record, such as court records. United States v. Howard, 16 381 F.3d 873, 876 n.1 (9th Cir. 2004). 17 Defendants request the Court take judicial notice of the 18 following facts: 19 1. Plaintiff’s Proof of Service of Summons and Complaint 20 against Defendant Sunflowers Market, LLC; 21 2. Plaintiff’s Proof of Service of Summons and Complaint 22 against Henry’s Holdings, LLC (erroneously sued as 23 Sprouts Farmers Market, LLC); 24 3. Plaintiff’s Complaint filed August 20, 2018 in State 25 Court; 26 4. Plaintiff’s First Amended complaint filed January 10, 27 2019; and 28 5. United States Postal Service ZIP-code information 1 webpage (reflecting that 95614 is the ZIP code 2 associated with Cool, California in El Dorado County). 3 RJN, ECF No. 7. Plaintiff does not oppose Defendants’ request 4 for judicial notice. Moreover, the Court finds these facts are 5 proper subjects of judicial notice. Accordingly, the Court 6 GRANTS Defendants’ request. 7 8 B. Analysis 9 1. Motion to Remand 10 Generally, when the United States district courts have 11 original jurisdiction over a civil action filed in state court, 12 a defendant may remove the suit to the federal court in “the 13 district and division embracing the place where [the suit] is 14 pending.” 28 U.S.C. § 1441(a). Removal of a state action “may 15 be based on either diversity jurisdiction or federal question 16 jurisdiction.” Godoy v. Family Dollar, Inc., No. 1:16-cv-00969- 17 DAD-JLT, 2016 WL 4925826, at *1 (E.D. Cal. Sept 16, 2016) 18 (citing City of Chicago v. Int’l Coll. Of Surgeons, 522 U.S. 19 156, 163 (1997)). Defendants bear the burden of proving, by a 20 preponderance of the evidence, the basis of the federal court’s 21 jurisdiction. Cohn v. Petsmart, Inc., 281 F.3d 837, 839 (9th 22 Cir. 2002). 23 Here, Plaintiff argues the Court should remand this suit to 24 Sacramento County Superior Court because Defendants’ removal was 25 untimely.1 Mot. at 5-6. Section 1446(b) creates two thirty-day 26 1 Plaintiff’s Introduction and Statement of Issues also suggests 27 that Defendant’s “substantial offensive or defensive action” in state court prior to removal warrants remanding the case. See 28 Mot. at 1, 3. The body of the motion, however, does not advance 1 windows for removing a case from state court. Godoy, 2016 WL 2 4925826, at *2. When the presence of federal jurisdiction is 3 clear on the face of the complaint, defendants must file a 4 notice of removal within thirty days of receiving the initial 5 pleading. 28 U.S.C. § 1446(b)(1). When the complaint does not 6 set forth grounds for federal jurisdiction, defendants must file 7 their notice of removal within thirty days of receiving “a copy 8 of an amended pleading, motion, order or other paper from which 9 it may first be ascertained that the case . . . is or has become 10 removable.” 28 U.S.C. § 1446(b)(3). Documents received prior 11 to service of the complaint do not qualify as “other paper[s]” 12 under Section 1446(b)(3). Carvahlo v. Equifax Information, 629 13 F.3d 876, 886 (9th Cir. 2010) (“[A] pre-complaint document 14 containing a jurisdictional clue [cannot] operate in tandem with 15 an indeterminate initial pleading to trigger some kind of hybrid 16 of the first and second removal periods.”) 17 Plaintiff does not dispute that Section 1446(b) creates two 18 distinct removal periods. Nor does she contend her complaint 19 put Defendants on notice of the amount in controversy. Rather, 20 she argues the October 10 and November 10 letters to Defendants 21 made clear she was seeking more than $75,000, and thus, 22 triggered Section 1446’s second removal window. Mot. at 5-6. 23 Carvalho, 629 F.3d at 885-86, however, precludes the Court from 24 starting the removal clock on October 10. There, the Ninth 25 Circuit held that a document “received prior to the receipt of 26 the initial pleading [could not] trigger the second thirty-day 27

28 any arguments or case law in support of this theory. 1 removal period” under Section 1446(b). Id. at 886 (emphasis 2 added). Although Plaintiff filed her complaint in state court 3 on August 20, 2018, Defendants did not receive service of the 4 complaint until October 16, 2018. Exh. I to Opp’n. The Court, 5 therefore, cannot consider the October 10 letter in determining 6 when Defendants learned the case was removable. 7 Nor can the Court consider the November 10 letter. The 8 text of Section 1446(b)(3) states the second thirty-day window 9 does not start until defendants’ “receipt . . . of a copy of an 10 amended pleading, motion, order or other paper rom which it may 11 first be ascertained that the case is . . . or has become 12 removable.” 28 U.S.C. § 1446(b)(3) (emphasis added). In 13 defense counsel’s sworn declaration, he maintains he never 14 received Plaintiff’s November 10 letter. Somes Decl. ¶¶ 5-6. 15 And the errors and abbreviations in the letter lend credibility 16 to the notion that the document never reached its intended 17 destination. Plaintiff did not produce any evidence to rebut 18 Defendants’ claim of non-receipt. 19 Setting aside the October 10 and November 10 letters, 20 Plaintiff’s Statement of Damages was the first post-complaint 21 document notifying Defendants that the amount in controversy 22 exceeded Section 1332’s jurisdictional minimum. See 28 U.S.C. 23 § 1332. Defendants filed their notice of removal within thirty 24 days of receiving this document. The Court, therefore, finds 25 Defendants’ removal was timely. Plaintiff’s motion to remand is 26 DENIED. 27 /// 28 /// 1 2 2. Request for Costs and Attorney Fees 3 Under 28 U.S.C. § 1447(c), “[a]n order remanding the case 4 may require payment of just costs and any actual expenses, 5 including attorney fees, incurred as a result of the removal.” 6 Plaintiff requests costs and attorney fees pursuant to this 7 || provision. Because the Court has denied Plaintiff’s request to 8 remand this case, Plaintiff’s request for fees and costs is also 9 DENIED. 10 11 Til. ORDER 12 For the reasons set forth above, the Court DENIES 13 Plaintiff’s motion to remand and request for costs and attorney 14 fees. 15 IT IS SO ORDERED. 16 Dated: September 3, 2019 17 kA 18 teiren staves odermacr 7008 19 20 21 22 23 24 25 26 27 28