Smith v. Costco Wholesale Corp. ( 2021 )

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 SONDRA SMITH, No. 2:20-cv-01861-JAM-AC 14 Plaintiff, 15 v. ORDER DENYING MOTION TO REMAND 16 COSTCO WHOLESALE CORP., a California corporation, and 17 DOES 1 through 25, inclusive, 18 Defendants. 19 20 On June 18, 2021, Sondra Smith (“Plaintiff”) filed a motion 21 to remand this action to Sacramento County Superior Court. See 22 Mot., ECF No. 14-2. Costco Wholesale Corporation (“Defendant”) 23 filed an opposition. See Opp’n, ECF No. 20. Plaintiff replied. 24 See Reply, ECF No. 23. For the reasons set forth below, the 25 Court DENIES Plaintiff’s motion.1 26 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for August 24, 2021. 1 I. OPINION 2 A. Request for Judicial Notice 3 Defendant requests the Court take judicial notice of two 4 documents already on the docket: (1) Defendant’s Removal 5 Documents at ECF No. 1 and (2) the Status Pre-Trial Scheduling 6 Order at ECF No. 5. See Def.’s RFJN, ECF No. 20-1. While this 7 request is unnecessary and duplicative as these documents are 8 already on the docket, the Court nevertheless grants the request 9 because matters of public record include “documents on file in 10 federal or state courts.” Harris v. Cnty. of Orange, 682 F.3d 11 1126, 1132 (9th Cir. 2012). 12 B. Analysis 13 Defendant contends the motion is procedurally improper for 14 two reasons: (1) because Plaintiff failed to meet and confer 15 prior to filing and (2) because Plaintiff failed to timely file 16 the motion.2 Opp’n at 3-7. As an initial matter, Defendant is 17 correct that “failure to comply with the [Court’s] meet and 18 confer requirement…result[s] in the dismissal, without prejudice 19 of the offending party’s motion.” Order re Filing Requirements 20 at 2, ECF No. 2-2 (emphasis added). However, even if Plaintiff 21 had complied with this requirement, the more significant 22 procedural defect is Plaintiff’s failure to timely file the 23 motion. See Opp’n at 4-7. 24 /// 25 /// 26 27 2 As the Court denies Plaintiff’s motion on procedural grounds, it does not reach Defendant’s additional substantive arguments as 28 to why diversity jurisdiction exists. See Opp’n at 7-9. 1 A motion to remand must be filed within 30 days of the 2 notice of removal if it is on the basis of any defect other than 3 lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c). 4 Defendant argues the 30-day rule applies here because Plaintiff’s 5 motion challenges defects with the notice of removal as opposed 6 to the Court’s subject matter jurisdiction. Opp’n at 5. 7 Specifically, the two alleged defects with the notice of removal 8 are that “Costco use[d] the wrong criteria to estimate the value 9 of Plaintiff’s case” and “Costco’s notice of removal was 10 untimely.” Id. (citing to Mot. at 4-11). Accordingly, Plaintiff 11 had 30 days to file a motion to remand based on those alleged 12 defects. She did not: the notice of removal was filed on 13 September 15, 2020, but Plaintiff did not file this motion until 14 June 18, 2021, more than eight months later. See Mot. Under 28 15 U.S.C. § 1447(c), she is foreclosed from raising these defects 16 now and her motion must be denied. 17 Nowhere in her reply brief does Plaintiff challenge 18 Defendant’s characterization of the motion as an attack on 19 defects with the notice of removal. See Reply. Nor does she 20 respond to Defendant’s legal argument as to the application of 21 the 30-day rule. Id. Plaintiff’s failure to address this 22 argument constitutes waiver of that argument. See e.g. Resnick 23 v. Hyundai Motor Am., Inc., No. CV 16-00593-BRO (PJWx), 2017 WL 24 1531192, at *22 (C.D. Cal. Apr. 13, 2017) (dismissing claims 25 where the plaintiff failed to address defendants’ argument in 26 opposition, thereby waiving the argument); Richardson-Bass v. 27 State Center Cmty. College District, No. 1:19-cv-01566-AWI-SAB, 28 2020 WL 5658225, at *15 (E.D. Cal. Sept. 23, 2020)(same). eee eee ON IONE OE ESO 1 Il. ORDER 2 For the reasons set forth above, the Court DENIES 3 Plaintiff’s motion to remand. 4 IT IS SO ORDERED. 5 Dated: September 22, 2021 Lh Ion 7 teiren staves odermacr 7008 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28