1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 Case No. 2:19-cv-06825-AB-JPR 11 ENRIQUE QUILES,

ORDER GRANTING MOTION TO

12 REMAND, DENYING REQUEST

FOR ATTORNEY’S FEES, AND

13 Plaintiff, DENYING MOTION TO COMPEL

ARBITRATION

14 v.

15

THE TERMINIX INTERNATIONAL

16 COMPANY LIMITED

PARTNERSHIP;

17

SERVICEMASTER GLOBAL

18 HOLDINGS, INC.;

AETNA HEALTH AND LIFE

19

INSURANCE COMPANY;

20 TODD RUSHWORTH, an individual; SILVIA BARBOSA, an individual; and 21 DOES 1-100, inclusive, 22 Defendants. 23

24 Before the Court is Plaintiff Enrique Quiles’s (“Plaintiff”) motion to remand 25 this action to the Superior Court of California, County of Los Angeles and request for 26 attorney’s fees and sanctions in the amount of $15,400 plus costs, (Dkt. No. 10), and 27 Defendants’ motion to compel arbitration. (Dkt. No. 11). Defendants filed an 28 1 opposition to Plaintiff’s motion to remand, (Dkt. No. 13), and Plaintiff filed an 2 opposition to Defendants’ motion to compel arbitration. (Dkt. No. 12). The Court 3 heard oral argument regarding these motions on September 27, 2019. For the reasons 4 stated below, the Court GRANTS Plaintiff’s motion to remand, DENIES Plaintiff’s 5 request for attorney’s fees, and DENIES Defendant’s motion to compel arbitration. 6 1. Complete diversity of citizenship among the parties is lacking 7 Plaintiff seeks to remand this action to California state court under 28 U.S.C. 8 § 1447(c) on the ground that complete diversity of citizenship among the parties is 9 lacking. Section 1447(c) states that “[i]f at any time before final judgment it appears 10 that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 11 U.S.C. § 1447(c). For the purposes of determining jurisdiction on a motion to remand, 12 “[d]iversity removal requires complete diversity, meaning that each plaintiff must be 13 of a different citizenship from each defendant.” Grancare, LLC v. Thrower by and 14 through Mills, 889 F.3d 543, 548 (9th Cir. 2018). Here, Plaintiff, a California resident 15 bringing California state law claims, (Dkt. No. 1-1 at 3), states that Defendant Todd 16 Rushworth is a California resident, thus eliminating complete diversity among the 17 parties. (Dkt. No. 10 at 8–10). In opposition, Defendants do not contest that Defendant 18 Todd Rushworth is a California resident.1 (Dkt. No. 13). Because complete diversity 19

20 1 Defendants assert that removal was proper because Defendant Todd Rushworth, although a California resident, had not yet been served at the time Defendants filed 21 their notice of removal. (Dkt. No. 13 at 9–14). Under 28 U.S.C. § 1441(b)(2), “a civil action otherwise removable solely on the basis of [diversity jurisdiction] may not be 22 removed if any of the parties in interest properly joined and served as defendants is a 23 citizen of the state in which such action is brought.” 28 U.S.C. § 1441(b)(2). In interpreting this provision, the Ninth Circuit has stated that “[a] nonresident defendant 24 cannot remove a ‘nonseparable’ action if the citizenship of any codefendant, joined by the plaintiff in good faith, destroys complete diversity, regardless of service or 25 nonservice upon the codefendant.” Clarence E. Morris, Inc. v. Vitek, 412 F.2d 1174, 1176 (9th Cir. 1969). The Ninth Circuit then clarified that this holding, derived from 26 Pullman Co. v. Jenkins, 305 U.S. 534 (1939), was not overturned by the 27 implementation of 28 U.S.C. § 1441(b), as Defendants now assert. Vitek, 412 F.2d at 1176 n.1. Because the service or non-service of Defendant Todd Rushworth is 28 irrelevant in determining complete diversity among the parties, the Court finds 1 among the parties is lacking, the Court GRANTS Plaintiff’s motion to remand this 2 action. 3 2. The Court declines to award attorney’s fees to Plaintiff 4 Under 28 U.S.C. § 1447(c), “[a]n order remanding the case [to state court] may 5 require payment of just costs and any actual expenses, including attorney fees, 6 incurred as a result of the removal.” 28 U.S.C. § 1447(c). “Absent unusual 7 circumstances, courts may award attorney’s fees under § 1447(c) only where the 8 removing party lacked an objectively reasonable basis for seeking removal. 9 Conversely, when an objectively reasonable basis exists, fees should be denied.” 10 Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). Here, Defendants sought 11 to remove this action on the basis of complete diversity of citizenship among the 12 parties. (Dkt. No. 1). In its notice of removal, Defendants indicated that it did not 13 know the citizenship of Defendant Todd Rushworth. Id. ¶ 12. However, with respect 14 to all remaining parties, Defendants correctly stated that citizenship is diverse. 15 Because Defendants’ removal was based on the diversity of all remaining parties, and 16 they did not know the citizenship of Defendant Todd Rushworth at the time, the Court 17 concludes that Defendants did not lack an objectively reasonable basis for removal. 18 The Court accordingly DENIES Plaintiff’s request for attorney’s fees under 28 U.S.C. 19 § 1447(c). 20 3. The Court lacks jurisdiction over Defendants’ motion to compel arbitration 21 Because, as noted above, the Court lacks jurisdiction over this action, the Court 22 lacks jurisdiction to consider Defendants’ motion to compel arbitration. (Dkt. No. 11). 23 The Court accordingly DENIES Defendants’ motion to compel arbitration for lack of 24 jurisdiction. 25 // 26 27

28 Defendants’ argument unavailing. 1 4. Conclusion 2 For the reasons stated above, the Court GRANTS Plaintiff’s motion to remand 3 | this action to the Superior Court of California, County of Los Angeles, DENIES 4 | Plaintiffs request for attorney’s fees under 28 U.S.C. § 1447(c), and DENIES 5 | Defendants’ motion to compel arbitration for lack of jurisdiction. 6 IT IS SO ORDERED. 7

9 | Dated: October 16, 2019 10 HONORABLE ANDRE BIROTTE JR.

UNITED STATES DISTRICT COURT JUDGE

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4.