Cittadino v. BrandSafway Services, LLC ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 ----oo0oo---- 9 10 SULLIVAN CITTADINO, No. 2:23-cv-00322 WBS JDP 11 Plaintiff, 12 v. MEMORANDUM AND ORDER RE: PLAINTIFF’S MOTION TO REMAND 13 BRANDSAFWAY SERVICES, LLC; BRAND INDUSTRIAL SERVICES, INC.; 14 BRANDSAFWAY INDUSTRIES, LLC; SAFWAY GROUP HOLDING, LLC; and 15 DOES 1 through 20, inclusive, 16 Defendants. 17 18 ----oo0oo---- 19 Plaintiff Sullivan Cittadino brought this action in 20 Solano County Superior Court against BrandSafway Services, LLC; 21 Brand Industrial Services, Inc.; BrandSafway Industries, LLC; and 22 Safway Group Holding, LLC (collectively “defendants”), alleging 23 breach of an implied employment contract, and violation of 24 California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 25 17200 et seq. (Compl. (Docket No. 1-1).) Defendants removed the 26 action to this court based on diversity. (Notice of Removal 27 28 1 (Docket No. 1).) Plaintiff now moves to remand.1 (Mot. (Docket 2 No. 8).) 3 “Under 28 U.S.C. § 1441, a defendant may remove an 4 action filed in state court to federal court if the federal court 5 would have original subject matter jurisdiction over the action.” 6 Moore-Thomas v. Ala. Airlines, Inc., 553 F.3d 1241, 1243 (9th 7 Cir. 2009). Federal courts have original jurisdiction over cases 8 where complete diversity exists between the parties and the 9 amount in controversy exceeds $75,000, exclusive of interest and 10 costs. 28 U.S.C. § 1332(a). Complete diversity requires that 11 each plaintiff is of a different citizenship than each defendant. 12 Grancare, LLC v. Thrower, 889 F.3d 543, 548 (9th Cir. 2018). 13 There is a “strong presumption” against exercising removal 14 jurisdiction, which “must be rejected if there is any doubt as to 15 the right of removal in the first instance.” Gaus v. Miles, 16 Inc., 980 F.2d 564, 566 (9th Cir. 1992) (internal citations 17 omitted). 18 I. Forum Selection Clause 19 Plaintiff first argues that the parties are bound by an 20 agreement containing a forum selection clause. The agreement at 21 issue, titled “Confidentiality, Non-Solicitation and Invention 22 Assignment Agreement,” provides in relevant part: 23 Consent to Jurisdiction. Manager [plaintiff] hereby irrevocably submits to the jurisdiction of state courts in 24 Los Angeles County, California, in any action or proceeding arising out of or relating to this Agreement, and Manager 25 hereby irrevocably consents to personal jurisdiction in, and 26 1 The court takes this motion under submission and 27 decides it without the need for oral argument. Defendant also moved to dismiss the case. The court addresses that motion in a 28 separate order. 1 agrees that all claims in respect to such action or proceeding may be heard and determined in any such court as 2 selected by the Company . . . Nothing within this paragraph shall affect the Company’s right to bring any action or 3 proceeding against Manager in any court of competent jurisdiction. 4 (Docket No. 8-2 ¶ 14 (formatting in original).) 5 Plaintiff’s argument fails for multiple reasons. 6 First, the agreement only pertains to confidentiality, non- 7 solicitation, and invention assignments, none of which are at 8 issue here. (See generally id.) Second, even if the agreement 9 did cover this dispute, the agreement’s consent to jurisdiction 10 “does not mean that the same subject matter cannot be litigated 11 in any other court,” as it is “permissive rather than mandatory.” 12 See Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 77 13 (9th Cir. 1987). “In comparison, in cases in which forum 14 selection clauses have been held to require litigation in a 15 particular court, the language of the clauses clearly required 16 exclusive jurisdiction.” Id.; see also Calisher & Assocs., Inc. 17 v. RGCMC, LLC, No. cv-08-06523 MMM EX, 2008 WL 4949041, at *4 18 (C.D. Cal. Nov. 17, 2008), aff’d, 373 F. App’x 697 (9th Cir. 19 2010) (“A forum selection clause is permissive when the parties 20 merely consent to bestow jurisdiction on a court without stating 21 that the court has exclusive jurisdiction to hear their 22 disputes.”); Animal Film, LLC v. D.E.J. Prods., Inc., 193 Cal. 23 App. 4th 466, 472 (Cal. 2d Dist. 2011) (explaining that 24 California courts have found forum selection clauses to be 25 mandatory only when they contain “language of exclusivity”). 26 Accordingly, the agreement does not contain a forum selection 27 clause precluding this court from exercising jurisdiction. 28 1 II. Diversity 2 Plaintiff next argues that defendants’ notice of 3 removal is deficient in that it fails to adequately identify the 4 citizenship of each relevant party. This argument is perplexing, 5 as the notice of removal does in fact identify and explain the 6 citizenship of all relevant parties. (See Notice of Removal ¶¶ 7 13-21.) In opposing this motion, defendants have also provided a 8 declaration explaining the citizenship of each party. (See Decl. 9 of Bjorn Erland (“Erland Decl.”) (Docket No. 17-1).) 10 There is one corporate defendant, Brand Industrial 11 Services, Inc. “For purposes of determining diversity 12 jurisdiction, ‘a corporation shall be deemed to be a citizen of 13 every State . . . by which it has been incorporated and of the 14 State . . . where it has its principal place of business.’” 3123 15 SMB LLC v. Horn, 880 F.3d 461, 462–63 (9th Cir. 2018) (quoting 28 16 U.S.C. § 1332(c)(1)). Defendants state that Brand Industrial 17 Services, Inc.’s state of incorporation is Delaware and its 18 principal place of business is Georgia. (Notice of Removal ¶¶ 19 14-17; Erland Decl. ¶ 4.) Because plaintiff does not appear to 20 dispute either of these representations, the court concludes that 21 Brand Industrial Services, Inc. is a citizen of Delaware and 22 Georgia. 23 There are three LLC defendants: BrandSafway Industries, 24 LLC; Safway Group Holding, LLC; and BrandSafway Services, LLC. 25 “For purposes of diversity jurisdiction, a limited liability 26 company is a citizen of every state of which its owners/members 27 are citizens.” 3123 SMB LLC, 880 F.3d at 465 (internal quotation 28 marks omitted). Defendants’ notice of removal and declaration eee eee eee I I IID RN ONE IIE EO NE 1 identify each member of each LLC, and plaintiff does not appear 2 to dispute the accuracy of these representations. (See Notice of 3 Removal (IJ 19-21; Erland Decl. {I 2-6.) 4 BrandSafway Industries, LLC’s sole member is Brand 5 Industrial Projects, LLC. (See Notice of Removal 7 19; Erland 6 Decl. @ 3.) Brand Industrial Projects, LLC’s sole member is 7 Brand Shared Services, LLC, whose sole member is Brand Industrial 8 Services, Inc. (Id.) As discussed above, Brand Industrial 9 || Services, Inc. is a citizen of Delaware and Georgia. BrandSafway 10 Industries, LLC is therefore a citizen of Delaware and Georgia. 11 Safway Group Holding, LLC’s sole member is Brand 12 Industrial Services, Inc. (See Notice of Removal {I 20; Erland 13 Decl. @ 5.) Brand Industrial Services, Inc. is a citizen of 14 Delaware and Georgia. Safway Group Holding, LLC is therefore 15 also a citizen of Delaware and Georgia. 16 BrandSafway Services, LLC’s sole member is Safway Group 17 Holding, LLC, whose sole member is Brand Industrial Services, 18 Inc. (See Notice of Removal 7 21; Erland Decl. 7 6.) Brand 19 Industrial Services, Inc. is a citizen of Delaware and Georgia. 20 BrandSafway Services, LLC is therefore also a citizen of Delaware 21 and Georgia. 22 Based on the foregoing, each plaintiff is of a 23 different citizenship than each defendant. Accordingly, complete 24 diversity exists. See Grancare, 889 F.3d at 548. 25 IT IS THEREFORE ORDERED that plaintiff’s Motion to 26 Remand (Docket No. 8) be, and the same hereby is, DENIED. 27 | Dated: May 7, 2023 rbltitiomn~ Kh 2A. bt—~ WILLIAM B. SHUBB 28 UNITED STATES DISTRICT JUDGE