notice to adverse parties and state court of removal of case to federa

Cal. Super. - 1st Dist.October 7, 2019

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT JOHNS MANVILLE’S NOTICE TO ADVERSE PARTIES AND STATE COURT OF REMOVAL TO FEDERAL COURT OF CIVIL ACTION PURSUANT TO 28 U.S.C. §§ 1332(a) and 1441(a) SHARON C. COLLIER (State Bar No. 203450) scc@severson.com LESLIE A. FALES (State Bar No. 289565) laf@severson.com SEVERSON & WERSON A Professional Corporation One Embarcadero Center, Suite 2600 San Francisco, California 94111 Telephone: (415) 398-3344 Facsimile: (415) 956-0439 Attorneys for Defendant JOHNS MANVILLE, INC. SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO MANUEL DUARTE, Plaintiff, vs. JOHNS MANVILLE, INC., DOES 1 to 100, Defendants. Case No. CGC-19-576183 DEFENDANT JOHNS MANVILLE’S NOTICE TO ADVERSE PARTIES AND STATE COURT OF REMOVAL TO FEDERAL COURT OF CIVIL ACTION PURSUANT TO 28 U.S.C. §§ 1332(a) and 1441(a) Action Filed: May 23, 2019 Trial Date: N/A TO PLAINTIFF HEREIN AND HIS RESPECTIVE COUNSEL OF RECORD PLEASE TAKE NOTICE that a Notice of Removal of the above-entitled action from the Superior Court of the State of California, County of San Francisco to the United States District Court for the Northern District of California was duly filed by Defendant Johns Manville., erroneously sued herein as Johns Manville, Inc., on July 5, 2019 in the United States District Court for the Northern District of California pursuant to 28 U.S.C. §§ 1332(a) and 1441(a). A true and correct filed copy of said Notice of Removal is attached hereto as Exhibit 1. ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 07/05/2019 Clerk of the Court BY: JUDITH NUNEZ Deputy Clerk 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANT JOHNS MANVILLE’S NOTICE TO ADVERSE PARTIES AND STATE COURT OF REMOVAL TO FEDERAL COURT OF CIVIL ACTION PURSUANT TO 28 U.S.C. §§ 1332(a) and 1441(a) DATED: July 5, 2019 SEVERSON & WERSON A Professional Corporation By: /s/Leslie A. Fales Sharon C. Collier Leslie A. Fales Attorneys for Defendant JOHNS MANVILLE, INC. Exhibit 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 75007.0016/14946113.1 DEFENDANT JOHNS MANVILLE’S NOTICE OF REMOVAL TO FEDERAL COURT UNDER 28 U.S.C. § 1441(b) [DIVERSITY] SHARON C. COLLIER (State Bar No. 203450) scc@severson.com LESLIE A. FALES (State Bar No. 289565) laf@severson.com SEVERSON & WERSON A Professional Corporation One Embarcadero Center, Suite 2600 San Francisco, California 94111 Telephone: (415) 398-3344 Facsimile: (415) 956-0439 Attorneys for Defendant JOHNS MANVILLE, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA MANUEL DUARTE, Plaintiff, vs. JOHNS MANVILLE, INC., DOES 1 to 100, Defendants. Case No. 19-cv-03890 DEFENDANT JOHNS MANVILLE’S NOTICE OF REMOVAL TO FEDERAL COURT UNDER 28 U.S.C. § 1441(b) [DIVERSITY] Action Filed: May 23, 2019 Trial Date: N/A TO THE HONORABLE JUDGES AND CLERK OF THE COURT: PLEASE TAKE NOTICE that Defendant JOHNS MANVILLE erroneously sued herein as JOHNS MANVILLE, INC. hereby removes to this Court the state court action described below: I. STATUS OF PLEADINGS On or about May 23, 2019, plaintiff MANUEL DUARTE (hereinafter “plaintiff”) filed a Complaint against JOHNS MANVILLE erroneously sued herein as JOHNS MANVILLE, INC. (hereinafter “Johns Manville”) in the San Francisco County Superior Court of California, entitled MANUEL DUARTE vs. JOHNS MANVILLE, INC. and DOES 1-100, Case No. CGC-19-576183 (hereinafter the “Complaint”). The Complaint alleges a single cause of action for negligence. Johns Manville was served with the Summons and a copy of the Complaint on or about June 4, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 75007.0016/14946113.1 2 DEFENDANT JOHNS MANVILLE’S NOTICE OF REMOVAL TO FEDERAL COURT UNDER 28 U.S.C. § 1441(b) [DIVERSITY] 2019. (Declaration of Leslie A Fales [hereinafter “Fales Dec.”] at ¶5, and Exhibit A; Exhibit B.) Plaintiff alleges that on or about October 27, 2018, he was engaged in work of reconstructing and/or dismantling an oven and conveyor system at a Johns Manville facility. During the course of this work, Plaintiff further alleges that a portion of the roof of the oven collapsed as a result of a concealed and unsafe condition of the structure of the roof of this oven. Plaintiff asserts that he fell from the roof onto the floor of the oven and sustained debilitating injuries. (Fales Dec. at Exhibit A at ¶ 28.) The Complaint seeks compensatory damages, including wage loss, hospital and medical expenses, general damages and loss of earning capacity. (Id. at ¶¶ 30-32.) Johns Manville filed an Answer to Plaintiff’s Complaint concurrent with this Notice on July 5, 2019 in San Francisco County Superior Court. (Fales Dec. at ¶ 6, Exhibit C.) In the Answer, Johns Manville asserted a general denial, as well as various affirmative defenses. (Fales Dec. at Exhibit C.) On information and belief, Johns Manville is the only named defendant which has been served to-date in this matter and Plaintiff has not named any other “Doe” defendants (Fales Dec at ¶¶ 2-3.) Since no other defendant has been named or served, no consent is required for removal. (Destfino v. Reiswig, 630 F.3d 952, 956 (9th Cir. 2011).) Since this action was commenced in the San Francisco County Superior Court, removal to the Northern District of California is appropriate. II. STATEMENT OF JURISDICTION This civil action involves parties who are citizens of different states and the amount in controversy exceeds $75,000. Accordingly, this Court has jurisdiction under 28 U.S.C. § 1332, and has the power to remove this matter to this Court pursuant to 28 U.S.C. § 1441(b). A. Complete Diversity of Citizenship In order to invoke federal diversity jurisdiction pursuant to 28 U.S.C. § 1332, complete diversity of citizenship must exist between the parties. (Matao Yokeno v. Sawako Sekiguchi, 754 F.3d 649, 652 (9th Cir. 2014).) Here, plaintiff and Johns Manville are citizens of different states. Thus, diversity of citizenship exists between the parties. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 75007.0016/14946113.1 3 DEFENDANT JOHNS MANVILLE’S NOTICE OF REMOVAL TO FEDERAL COURT UNDER 28 U.S.C. § 1441(b) [DIVERSITY] For diversity purposes, a person is a “citizen” of the state in which he or she is domiciled. (Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir. 1983).) A person’s domicile is the place he or she resides with the intention to remain or to which he or she intends to return. (Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001).) Where the complaint does not identify the plaintiff’s domicile, that fact must be set forth in defendant's notice of removal. (See Rolling Greens MHP, L.P. v. Comcast SCH Holdings, L.L.C., 374 F.3d 1020, 1021 (11th Cir. 2004).) Here, plaintiff alleges in the Complaint that he is a resident of the city of Turlock, located in the County of Stanislaus, in the state of California. (Fales Dec. Exhibit A at ¶2.) Accordingly, plaintiff was and is a citizen of the State of California. In order to ascertain the citizenship of a corporation, courts look to the state of incorporation, and the state where the corporation has its principal place of business. (28 U.S.C. § 1332(c)(1).) Here, Johns Manville is a corporation formed and incorporated under the laws of the State of Delaware. (Fales Dec. Exhibit A at ¶3; a true and correct copy of the Amended Statement By a Foreign Corporation evidencing Johns Manville’s citizenship in the State of Delaware taken from the California Secretary of State website is attached to the Request for Judicial Notice [“RFJN”] served herewith as Exhibit D.) Moreover, Johns Manville is headquartered and maintains its principal place of business at 717 17th Street, Denver Colorado. (Fales Dec. at Exhibit A at ¶3; a true and correct copy of a document from the California Secretary of State website evidencing that Johns Manville maintains its headquarters and principal place of business in the State of Colorado is attached to the RFJN as Exhibit E.) Accordingly, Johns Manville was and is a citizen of the State of Colorado. As such, diversity-of-citizenship exists between the parties. B. No Resident Defendants Pursuant to 28 U.S.C. § 1441(b)(2), when removing a case to federal court on the basis of diversity jurisdiction, none of the defendants may be “citizens of the State in which such action is brought.” In this case, plaintiff resides in California. The only named and served defendant, Johns Manville, is a citizen of the State of Colorado. Plaintiff has not named any other “Doe” defendants. (Fales Dec. at ¶ 3.) Thus, complete diversity exists because no defendant resides in 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 75007.0016/14946113.1 4 DEFENDANT JOHNS MANVILLE’S NOTICE OF REMOVAL TO FEDERAL COURT UNDER 28 U.S.C. § 1441(b) [DIVERSITY] the State of California. C. Amount in Controversy Pursuant to 28 U.S.C. § 1332(a), in order to invoke diversity jurisdiction, the amount in controversy must exceed $75,000, exclusive of interests and costs. When a plaintiff fails to “specify a particular amount of damages” in the complaint, the removing party is required to establish that it is “more likely than not” that the amount in controversy exceeds the statutory amount. (Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992); McPhail v. Derre & Co, (10th Cir. 2008) 529 F.3d 947, 954 (removing defendant must prove by a preponderance of the evidence that the amount in controversy is satisfied).) In making that determination, courts consider compensatory costs, including general and special damages, as well as attorney fees. (Meisel v. Allstate Indem. Co., 357 F.Supp.2d 1222, 1225 (E.D. Cal. 2005).) Courts also consider “other papers” not filed with the court. (Kuxhausen v. BMW Financial Services NA LLC, 797 F.3d 1136, 1140 (9th Cir. 2013.) The amount in controversy is merely an estimate of the total amount in dispute; it is not a prospective assessment of the defendant’s liability. (Lewis v. Verizon Communications, Inc., 627 F.3d. 395, 400 (9th Cir. 2010).) In the present case, plaintiff failed to specify a specific amount of damages in his Complaint. (Fales Dec. at Exhibit A.). Even so, the Complaint alleges that plaintiff sustained serious injuries, including but not limited to a traumatic brain injury, vertebral compression fracture at T-12 with residual neurologic impingement, and a rotator cuff tear in the left shoulder with possible nerve damage. (Fales Dec. at Exhibit A at ¶29.) The Complaint further alleges that as a result of the accident, Plaintiff suffered and continues to suffer great mental and physical pain and is informed and believes and thereon alleges that such injuries will result in permanent disability to plaintiff. (Ibid.) Plaintiff’s counsel confirmed that his client’s damages were extensive and that the amount in controversy would far exceed $75,000.00 in this case. This confirmation was done both verbally and in writing. (Declaration of Sharon C. Collier [hereinafter “Collier Dec.”] at ¶¶ 2-3.) Accordingly, based on the scope of physical injuries alleged, the potentially large special and general damages associated with these injuries, and counsel’s written confirmation of the same, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 75007.0016/14946113.1 5 DEFENDANT JOHNS MANVILLE’S NOTICE OF REMOVAL TO FEDERAL COURT UNDER 28 U.S.C. § 1441(b) [DIVERSITY] the amount in controversy far exceeds the jurisdictional minimum. III. TIMELINESS OF REMOVAL Pursuant 28 U.S.C. § 1446(b), if it is not clear by the initial pleading that the case is removable, “a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, a copy of [a]…paper from which it may first be ascertained that the case is one which is or has become removable…” The 30-day time limit within which a defendant can remove an action to federal court does not begin until the defendant(s) have received notice of the facts supporting removal. (Mattel, Inc. v. Bryant, 441 F.Supp.2d 1081, 1089-1090.) Here, Plaintiff served Johns Manville with a Summons and a copy of the Complaint on June 4, 2019. (Fales Dec. at ¶5 and at Exhibit D.) As set forth more fully above, the Complaint includes allegations of extensive physical injuries. The Complaint did not, however, include allegations as to the amount in controversy. Johns Manville did not have notice that the scope of alleged damages would exceed $75,000.00 until Plaintiff’s counsel confirmed the same, both verbally and in email communications on June 28, 2019. (Collier Dec. at ¶¶ 2-3.) As such, the removal period began as of that date. Even if the Complaint on its face provided sufficient allegations to put Johns Manville on notice that it is more likely than not that the amount in controversy exceeds $75,000.00, the 30 day period to respond to the Complaint expires on July 5, 2019. (Fed. R. Civ. P. 6.) Accordingly, Johns Manville has timely and promptly filed this petition for removal. IV. JOINDER OF ALL DEFENDANTS In order to effectuate removal, all defendants must join in the notice of removal. (Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 (9th Cir. 1988).) In this case, Johns Manville is the only named defendant in this action, other than fictitiously named “Does”. On information and belief, Plaintiff has not named any Doe Defendants in the state court action at this time. (Fales Dec. at ¶¶ 2-3.) Accordingly, this Notice of Removal is proper. V. VENUE Venue of this removed action is proper pursuant to 28 U.S.C. § 1441(a) because this Court is the United States District Court for the district corresponding to the place where the state court 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 75007.0016/14946113.1 6 DEFENDANT JOHNS MANVILLE’S NOTICE OF REMOVAL TO FEDERAL COURT UNDER 28 U.S.C. § 1441(b) [DIVERSITY] action was commenced. VI. NOTICE TO PLAINTIFF Johns Manville’s Notice to Adverse Parties of Notice of Removal is being contemporaneously filed in Case No. 18CIV05556 of the San Francisco County Superior Court. WHEREFORE, Johns Manville prays that the above-entitled action, currently pending in the San Francisco County Superior Court of California, be removed to the United States District Court for the Northern District of California, and that this action proceed in this Court as an action properly removed there. DATED: July 5, 2019 SEVERSON & WERSON A Professional Corporation By: /s/Leslie A. Fales Leslie A. Fales Attorneys for Defendant JOHNS MANVILLE, INC.