1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 |} TYLER GLENN, Case No.: 22-cv-1866-JO-MMP 12 Plaintiff, 13 || v. ORDER DENYING PLAINTIFF’S || DEXCOM, INC. RECONSIDERATION 15 Defendant. 16 17 18 19 20 Plaintiff Tyler Glenn moves for reconsideration [Dkt. 27] of the Court’s Orde 21 || denying Plaintiff's motion to remand this action to state court. Dkt. 25. For the reason 22 || stated below, the Court DENIES Plaintiffs request for reconsideration. 23 24 /// 25 || /// 26 27 28 || ///

1 I. BACKGROUND 2 On November 23, 2022, Plaintiff filed a products liability action against Defendant 3 || Dexcom, Inc., a citizen of California, in state court. Dkt. 6, Ex. A. On November 28, 4 2022, prior to receiving service of the complaint, Defendant filed a notice of removal on 5 basis of diversity jurisdiction. Dkt. 1. Plaintiff then served Defendant with the 6 complaint on December 2, 2022. Dkt. 6, Ex. B. On December 29, 2022, Plaintiff filed a 7 ||motion to remand the action to state court arguing that Defendant could not remove on 8 basis of diversity jurisdiction as a forum defendant. Dkt. 6. Because Plaintiff failed 9 || to file his motion for remand within 30 days of the notice of removal as required by 28 10 || U.S.C. § 1447(c), the Court denied Plaintiff's motion to remand as untimely. Dkt. 25. In 11 ||response, Plaintiff filed this motion to reconsider. Dkt. 27. 12 Il. LEGAL STANDARD 13 Rule 59(e) allows a party to move to alter or amend a judgment within 28 days after 14 ||the entry of judgment. Fed. R. Civ. P 59(e). Reconsideration under Rule 59(e) is “an 15 extraordinary remedy, to be used sparingly in the interests of finality and conservation of 16 judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (citation 17 ||omitted). The Ninth Circuit has identified three grounds for reconsideration: (1) newly 18 || discovered evidence, (2) an intervening change in controlling law, or (3) clear error in the 19 || prior decision or a result of manifest injustice. Mustafa v. Clark Cnty. Sch. Dist., 157 F.3d 20 ||1169, 1179 (9th Cir. 1998); see Navajo Nation v. Confederated Tribes & Bands of the 21 || Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003). “Clear error means that the 22 ||reviewing court on the entire record is left with the definite and firm conviction that a 23 mistake has been committed.” Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 24 |{2013). 25 III. DISCUSSION 26 Although Plaintiff filed his motion to remand after the 30-day deadline, he still 27 |\contends that it was timely. Plaintiff argues that because Defendant removed this action 28 || prior to official service of the complaint, the notice of removal was defective and did not

1 the 30-day window for filing a motion to remand.' The Court will therefore start by 2 ||examining whether a Defendant may validly remove an action to federal court prior □ 3 || official service of the complaint. 4 28 U.S.C. § 1446(b) provides that “[t]he notice of removal of a civil action o 5 || proceeding shall be filed within 30 days after the receipt by the defendant, through servic: 6 || or otherwise, of a copy of the initial pleading setting forth the claim for relief upon whicl 7 ||such action or proceeding is based... .” After a notice of removal is filed, a plaintiff thet 8 || has 30 days to file a motion to remand. 28 U.S.C. § 1447(c). 9 While a defendant certainly is not required to remove a case before official servic 10 the complaint, there is no binding authority on whether a defendant may remove a1 11 || action before service is completed. The Supreme Court held that a defendant’s □□□□□□ 12 || deadline to remove a case does not start running until formal service of the complaint. Se 13 || Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999) (reasoning that thi 14 ||interpretation of section 1446(b) assures defendants adequate time to decide whether t 15 ||remove a case). Neither the Murphy Bros case nor any Ninth Circuit cases, however, havi 16 ||addressed whether a defendant may validly remove prior to official service of th 17 ||complaint. See generally id. District courts grappling with this issue have held that ; 18 ||defendant may remove a lawsuit before being served with either the complaint o 19 ||summons. Kuchta v. Nat’l R.R. Passenger Corp., 2022 WL 3650734, at *4 (N.D. Cal 20 || Aug. 24, 2022) (holding that because plaintiff brought his case in state court and name 21 defendant as a party, the defendant “was entitled to remove the case under □□□□□□□ 22 || 1441(a) regardless of whether it had been served at the time of removal”); Fontalvo ex rei 23 || Fontalvo v. Sikorsky Aircraft Corp., 2013 WL 3197071, at *10 (S.D. Cal. June 20, 2013 24 (stating that defendant had standing to remove suit prior to being served because the cas: 25 26 || 27 ||) While Plaintiff does not specify the grounds on which he seeks reconsideration, the Court interprets th 28 motion as arguing that the Court committed clear error in finding Plaintiff's motion to remand untimely and, thus, in declining to remand this action to state court.

1 ||had been initiated in state court); Watanabe v. Lankford, 684 F. Supp. 2d 1210, 1214 (D. 2 || Haw. 2010) (“A complaint need only be filed to be removable.”). 3 Here, Plaintiff has not demonstrated that it was clearly erroneous for the Court to 4 || find that Defendant’s pre-service notice of removal was valid. Here, as in Kuchta, 5 || Fontalvo, and Watanabe, Defendant Dexcom filed its notice of removal after the complaint 6 || was filed in state court but before being served. Plaintiff filed his complaint against 7 ||Dexcom on November 23, 2022, both initiating this action and rendering Dexcom an 8 ll official defendant. See Cal. Civ. Proc. Code § 350 (“An action is commenced, within the 9 || meaning of this Title, when the complaint is filed.”); Fed. R. Civ. P. 3 (“A civil action is 10 ||}commenced by filing a complaint with the court.”); Bush v. Cheaptickets, Inc., 425 F.3d 11 ||683, 686-87 (9th Cir. 2005) (“[T]here is no defendant until a lawsuit has been properly 12 ||initiated in state court.”). Although Plaintiff did not formally serve Dexcom until 13 ||December 2, 2022, the company chose to remove the case on November 28, 2022—five 14 || days after the complaint was filed. While Defendant need not have filed its notice of 15 removal this early—pursuant to Murphy Bros, it had until 30 days after service to do so— 16 || Plaintiff points to no authority holding that removal is invalid simply because it occurred 17 ||prior to service. Accordingly, the Court “is not left with a definite and firm conviction” 18 ||that it erred in finding Defendant’s pre-service removal valid and denying □□□□□□□□□□□ 19 ||motion to remand as untimely. 28 U.S.C. § 1447(c); Smith, 727 F.3d at 955. The Court 20 || denies Plaintiff's motion for reconsideration. 2] IV. CONCLUSION 22 For the reasons stated above, the Court DENIES Plaintiff's motion to reconsider its 23 || August 15, 2023 order denying Plaintiff's motion to remand. 24 25 26 27 || 1T IS SO ORDERED. 28

1 ||Dated: December 11, 2023 2 3 siecle — 4 United States District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28