Neky v. Costco Wholesale Corporation

[1] 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA [4] 5 MICHAEL NEKY, Case No. 19-cv-03781-WHO 6 Plaintiff, ORDER GRANTING MOTION TO 7 v. REMAND 8 COSTCO WHOLESALE CORPORATION, Re: Dkt. No. 6 Defendant. [9] 10 INTRODUCTION 11 Plaintiff Michael Neky filed suit in San Mateo County Superior Court against defendant 12 Costco Wholesale Corporation (“Costco”) alleging negligence and premises liability. Costco 13 removed the case to federal court based on diversity jurisdiction, and Neky has filed a motion to 14 remand. Because Costco’s Notice of Removal was filed outside of the 30-day window allowed by [15] 28 U.S.C. § 1446 (b)(3), the Motion to Remand is GRANTED. 16 BACKGROUND 17 On January 19, 2017, while working for Heartland Express, Inc., Neky made a delivery to 18 a Costco-owned property in Foster City, California. Complaint, Ex. A to the Notice of Removal 19 [Dkt. No. 1-1] (“Compl.”) ¶ 6. During the delivery, he slipped and fell on a wet area of the 20 property’s delivery docks, sustaining severe personal injuries. Id. at ¶ 7 . He alleges that 21 Costoco’s negligence and failure to maintain the property were the proximate causes of his fall 22 and subsequent injuries. Id. at ¶ 8 . 23 Neky filed suit in state court on January 17, 2019, alleging negligence and premises 24 liability against the defendant. In his Complaint, Neky requests general damages, special 25 damages, loss of earnings, and other costs in an unspecified amount. Id. On March 1, 2019, 26 Costco’s registered agent was personally served with summons, a copy of the Complaint, and 27 other papers, including plaintiff’s Statement of Damages enumerating over $1 million in general 1 to the Notice of Removal [Dkt. No. 1-1 at ECF Pgs. 15-17 of 40]. The Proof of Service was 2 signed by the process server on March 7, 2019, and was filed with the Superior Court on March 3 25, 2019. Dkt. No. 1-1 ECF Pg. 15. Costco filed an answer to the Complaint on April 15, 2019. 4 Dkt. No. 1-1 ECF pgs. 18-21 of 40. 5 On May 30, 2019, Costco’s counsel of record received an Application for Lien from 6 Heartland Express, Inc., claiming and applying for a lien of $116,048.00. Notice of Removal 7 [Dkt. No. 1] 2-3. The Application for Lien states that “[a]s a proximate result of the injuries to 8 plaintiff . . . [Heartland Express, Inc.] has paid to and on behalf of plaintiff, the minimum sum of 9 $116,048.00, as and for workers’ compensation benefits and medical care and temporary and/or 10 permanent disability indemnity.” Id. 11 On June 28, 2019, Costco removed the case to this court on the basis of diversity 12 jurisdiction. Id. On July 26, 2019, Neky filed a motion to remand, asserting that removal was 13 improper because there is not complete diversity among the parties and the Notice of Removal 14 was untimely. Dkt. No. 6. 15 LEGAL STANDARD 16 A defendant may remove a case from state to federal court by filing a notice of removal 17 that lays out the grounds for removal. 28 U.S.C. § 1441 (a). A “notice of removal may be filed 18 within 30 days after receipt by the defendant, through service or otherwise, of a copy of an 19 amended pleading, motion, order or other paper from which it may first be ascertained that the 20 case is one which is or has become removable.” 28 U.S.C. § 1446 (b)(3). The removal statute’s 21 “time limit is mandatory and a timely objection to a late petition will defeat removal. . . .” Fristoe 22 v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir. 1980). 23 DISCUSSION 24 Costco filed the Notice of Removal on June 28, 2019, after its counsel received the 25 Application for Lien on May 30, 2019. Dkt. No. 1. It claims the Application for Lien was the first 26 indicator that the case involved an amount in controversy above the $75,000 threshold for 27 diversity jurisdiction. Costco’s Opposition to Motion to Remand 3, 6-8 [Dkt. No. 11]. However, 1 $1,525,000.00 in damages on March 1, 2019. Motion to Remand 3 [Dkt. No. 6], Dkt. No. 1-1 at 2 ECF pgs. 14-17. Because Costco filed the Notice of Removal more than 30 days after March 1, 3 2019, Neky argues the Notice was untimely and therefore invalid. Id. at 4-5. 4 A defendant must file its notice of removal, including “a short and plain statement of the 5 grounds for removal,” within 30 days of receiving the initial pleading. 28 U.S.C. § 1446 . If the 6 initial pleading does not appear removable on its face, the defendant may file a notice of removal 7 “within 30 days after receipt . . . , through service or otherwise, of a copy of an amended pleading, 8 motion, order or other paper from which it may first be ascertained that the case is one which is or 9 has become removable.” 28 U.S.C. § 1446 (b)(3). If a notice of removal is filed outside the 3010 day limit and the opposing party objects in a timely manner, removal is defeated. Fristoe, 615 11 F.2d at 1212. 12 Costco failed to file its Notice of Removal within 30 days of being served with plaintiff’s 13 Statement of Damages, making removal untimely. Although the Complaint did not indicate a 14 specific amount in controversy, the Statement of Damages that was served with the Complaint 15 outlined general and specific damages of $1,525,000.00. Statement of Damages, Dkt. No. 1-1 at 16 ECF pgs. 14-17. Statements of damages, like the one here, are considered “the functional 17 equivalent of an amendment to a complaint.” Plotitsa v. Superior Court, 140 Cal. App. 3d 755 , 18 759 (1983). Its service on March 1, 2019, therefore, triggered the 30-day period to remove the 19 case. 20 In its opposition, Costco objects to the court taking judicial notice of the Statement of 21 Damages and the related Proof of Service. Oppo. 7. However, the Statement of Damages, as well 22 as the Complaint and the Proof of Service, were part of the Costco’s Notice of Removal. Dkt. No. 23 1-1. These documents are part of the record of this case, and subject to judicial notice in the same 24 way the state court Complaint is. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) 25 (court may take judicial notice of its own records). 26 Costco also notes that the California statute governing statements of damages provides that [27] 1 a defendant “may” ask for plaintiff to provide one. Cal. C.C.P. § 425.11.! But there is nothing in 2 || the statutory language that prevents a plaintiff from serving one on its own accord, absent a 3 || request from the defendant. Jd. The purpose of the statute “is to give the defendant specific notice 4 || of damages sought,” therefore allowing defendants to better address claims brought against them. 5 Debbie S. v. Ray, Cal. App. 4th 193, 199 (1993). Costco was given that specific notice when 6 || Neky served the Statement of Damages on March 1, 2019. Costco had notice that this case was 7 removable on that date. 8 Costco does not dispute, through a declaration or otherwise, that it received the Statement 9 || along with the Complaint on March 1, 2019. Costco’s counsel merely asserts that he was not 10 aware of the amount in controversy until he received the Application for Lien. Declaration of 11 || Arthur J. Casey [Dkt. No. 11-1]. But that does not counter or otherwise undermine Neky’s Proof 12 of Service of the Statement on March 1, 2019. 5 13 Defendant did not file a timely notice of removal and, therefore, this case must be 14 || remanded.” CONCLUSION 16 Because defendant’s Notice of Removal was filed after the 30-day statutory limit, the 3 17 Motion to Remand is GRANTED and the case is remanded to the Superior Court of California, 18 County of San Mateo. 19 IT IS SO ORDERED. 20 Dated: October 10, 2019 21 . \f 22 . 3 liam H. Orrick United States District Judge [24] 25 ' Cal. Code Civ. Proc. § 425.11(b) provides “When a complaint is filed in an action to recover 26 || damages for personal injury or wrongful death, the defendant may at any time request a statement setting forth the nature and amount of damages being sought. The request shall be served upon the 07 plaintiff, who shall serve a responsive statement as to the damages within 15 days.” 28 > Because the notice of removal was untimely, I need not reach whether there is diversity jurisdiction.