Hauss v. Home Depot U.S.A., Inc. ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Thomas Hauss, No. 2:23-cv-01138-KJM-JDP 12 Plaintiff, ORDER 13 Vv. Home Depot U.S.A., Inc. & Kimco Realty Co., 1S Defendants. 16 17 Defendant Kimco Realty Corporation has removed this action based on diversity 18 | jurisdiction. Notice of Removal, ECF No. 1. The removal statute is strictly construed, and 19 | doubts regarding the court’s jurisdiction are resolved in favor of remand. See Luther v. 20 | Countrywide Home Loans Servicing, LP, 533 F.3d 1031, 1034 (9th Cir. 2008). Under 28 U.S.C. 21 | § 1446(b)(2)(A), “all defendants who have been properly joined and served must join in or 22 | consent to the removal of the action.” “[T]he filing of a notice of removal can be effective 23 | without individual consent documents on behalf of each defendant.” Proctor v. Vishay 24 | Jntertechnology Inc., 584 F.3d 1208, 1225 (9th Cir. 2009). For example, “[o]ne defendant’s 25 | timely removal notice containing an averment of the other defendants’ consent and signed by an 26 | attorney of record is sufficient.” Jd. 27 Here, Kimco does not claim or represent the other defendant, Home Depot U.S.A, Inc., 28 | consented to removal. See generally Notice of Removal. Accordingly, removal is improper. The 1 | Clerk of the Court is directed to remand this case to the Superior Court for the State of California 2 | in and for the County of Sacramento, and to close this case. 3 IT IS SO ORDERED. 4 DATED: June 22, 2023. 5 6 CHIEF ED STATES DISTRICT JUDGE 45