Kisaberth v. Expedia, Inc. ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SUE KISABERTH, Case No. 1:22-cv-01562-JLT-EPG 12 Plaintiff, ORDER GRANTING UNOPPOSED MOTION TO REMAND 13 v. (Doc. 13) 14 EXPEDIA INC., et al., 15 Defendants. 16 17 Plaintiff filed her original Complaint in the Superior Court of Madera County, California, 18 on October 6, 2022. (Doc. 1 at 9.) At that time, the named Defendants were Expedia, Inc., and 19 VRBO. (Id.) Defendant Expedia, Inc. removed the case from state court based on diversity 20 jurisdiction pursuant to 28 U.S.C. §§ 1332 and 1441(b). (Doc. 1.) 21 On February 7, 2023, Plaintiff filed a Motion for Leave to Amend (Doc. 7) and a 22 concurrent Motion to Dismiss the originally named corporate Defendants (Doc. 6). On February 23 22, 2023, this Court granted Plaintiff leave to amend and denied as moot the motion to dismiss 24 the corporate Defendants. (Doc. 10.) The Plaintiff filed her First Amended Complaint, which 25 names only two individual defendants, Shad Schidel, and Stephanie Schidel, both of whom are 26 alleged to be residents of Santa Cruz County, California. (Doc. 13.) 27 Plaintiff filed a motion to remand on April 7, 2023. (Doc. 13.) The remaining Defendants, 28 Shad Schidel and Stephanie Schidel, late-filed a non-opposition. (Doc. 16.) nen nn ee een ee II II II IEE III IED ED 1 “A civil action otherwise removable solely on the basis of the jurisdiction under section 2 | 1332(a)...may not be removed if any of the parties in interest properly joined and served as 3 | defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b)(2). “Tf at 4 | any time before final judgment it appears that the district court lacks subject matter jurisdiction, 5 || the case shall be remanded.” 28 U.S.C. § 1447(c). 6 Considering the non-opposition and the California residency! of the only remaining 7 | Defendants, the unopposed motion to remand (Doc. 13) is GRANTED. This matter shall be 8 || remanded to the Superior Court for the County of Madera. 9 10 IT IS SO ORDERED. 11 Dated: _ May 25, 2023 : TED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 ' Whether or not an allegation of residency, standing alone, is sufficient to establish diversity jurisdiction is debatable. Compare Lew v. Moss, 797 F.2d 747, 751 (9th Cir. 1986) (holding that residency can create a rebuttable 25 presumption of domicile supporting diversity of citizenship), with Kanter v. Warner-Lambert, 265 F.3d 853, 857 (9th Cir. 2001) (“A person residing in a given state is not necessarily domiciled there, and thus is not necessarily a citizen 26 of that state.”) and Mondragon v. Capital One Auto Fin., 736 F.3d 880, 884 (9th Cir. 2013) (“That a [person] may have a residential address in California does not mean that person is a citizen of California.”). But given that it is a removing defendant’s burden to demonstrate the existence of diversity jurisdiction, see Kanter, 265 F.3d at 857-58, there is no need to delve deeper into the citizenship of the remaining Defendants in the context of this unopposed 28 motion to remand.