Sammy El-Said v. BMW of North America, LLC

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 8:19-cv-02426-JLS-JDE Date: March 11, 2020

Title: Sammy El-Said v. BMW of North America, LLC et al.

Present: Honorable JOSEPHINE L. STATON, UNITED STATES DISTRICT JUDGE

Terry Guerrero N/A

Deputy Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT:

Not Present Not Present

PROCEEDINGS: (IN CHAMBERS) ORDER (1) DENYING PLAINTIFF’S MOTION

TO REMAND (Doc. 9) AND (2) DENYING PLAINTIFF’S

REQUEST FOR ATTORNEY’S FEES

Before the Court is a Motion to Remand brought by Plaintiff Sammy El-Said.

(Mot., Doc. 9.) Defendant BMW of North America, LLC (“BMW”) opposed. (Opp.,

Doc. 12.) Plaintiff did not reply. The Court finds the matter appropriate for decision

without oral argument. Fed. R. Civ. P. 78; C.D. Cal. R. 7-15. Accordingly, the hearing

set for March 13, 2020, at 10:30 a.m., is VACATED. For following reasons, Plaintiff’s

Motion is DENIED.

I. BACKGROUND

Plaintiff filed this “lemon law” action in Orange County Superior Court on

November 11, 2019. (Compl., Doc. 1-2.) Plaintiff alleges that he purchased a 2015

BMW M5, VIN No. WBSFV9C54FD59532 (“the Subject Vehicle”), from Crevier

BMW, in Santa Ana, CA, on August 2, 2018. (Id. ¶ 1.) He further alleges that Defendant

BMW issued an express warranty under which it would “preserve or maintain the utility

or performance of the [S]ubject [V]ehicle.” (Id. ¶ 7.) Plaintiff states that this express

warranty was an “integral factor” in his decision to purchase the Subject Vehicle. (Id.)

According to the Complaint, after Plaintiff took possession of the Subject Vehicle, it

experienced a wide range of mechanical and electrical failures and malfunctions. (Id. ¶

____________________________________________________________________________

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 8:19-cv-02426-JLS-JDE Date: March 11, 2020

Title: Sammy El-Said v. BMW of North America, LLC et al.

8.) Despite Plaintiff’s delivery of the Subject Vehicle to Defendant BMW “or its

authorized repair facility(s),” BMW has not repaired the vehicle to conform it to the

express warranty or replaced the vehicle. (Id. ¶¶ 9, 11.)

The Complaint does not clearly set forth the claims being brought by Plaintiff in

this litigation. (See Compl.) However, Plaintiff appears to assert claims for: (1) violation

of the Song-Beverly Consumer Warranty Act, California Civil Code § 1790 et seq.; (2)

breach of express warranty; and (3) breach of the implied warranties of merchantability

and fitness. (Compl. ¶¶ 4, 7, 10.) In the Complaint, Plaintiff seeks damages totaling at

least $175,385.56 but makes no allegation as to the parties’ citizenships. (See Prayer for

Relief, Compl. at 5; see generally Compl.)

BMW was served with the state-court summons and Complaint on November 8,

2019. (Notice of Removal ¶ 3, Doc. 1.) On November 27, 2019, BMW received a copy

of the sales contract which governed Plaintiff’s acquisition of the Subject Vehicle. (Opp.

at 3.) BMW states that the receipt of that document was the first point at which it gained

any information on Plaintiff’s citizenship, and thus could ascertain whether removal was

proper based on diversity jurisdiction. (Id.; Ramsay Decl. ¶ 3, Doc. 1-1; Stefatos Decl. ¶

3, Doc. 12-1.)

BMW removed the action to this Court on December 16, 2019, asserting that an

exercise of federal diversity jurisdiction is appropriate under 28 U.S.C. §§ 1332, 1441.

(Notice of Removal ¶ 4.) In the Notice of Removal, removal is characterized as proper

because (1) the parties are diverse, and (2) the amount in controversy exceeds $75,000.

(Id. ¶¶ 9-19.) Plaintiff contends that BMW’s removal of this action was not timely and

therefore argues that a remand to state court is necessary. (Mot. at 4-5.)

II. LEGAL STANDARD

A. Removal

A defendant may remove a case that was filed in state court to a federal court in

the same district and division if the federal court would have had original jurisdiction

over the action. See 28 U.S.C. § 1441(a)-(b); Caterpillar Inc. v. Williams, 482 U.S. 386,

____________________________________________________________________________

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 8:19-cv-02426-JLS-JDE Date: March 11, 2020

Title: Sammy El-Said v. BMW of North America, LLC et al.

392 (1987). Generally, subject matter jurisdiction is based on the presence of a federal

question, see 28 U.S.C. § 1331, or complete diversity between the parties, see 28 U.S.C.

§ 1332. Thus, “[a] defendant may remove an action to federal court based on federal

question jurisdiction or diversity jurisdiction.” Hunter v. Philip Morris USA, 582 F.3d

1039, 1042 (9th Cir. 2009). A federal court has diversity jurisdiction under 28 U.S.C.

§ 1332 if the amount in controversy exceeds $75,000 and the parties to the action are

citizens of different states. See 28 U.S.C. § 1332(a). However, “[i]t is to be presumed

that a cause lies outside the limited jurisdiction of the federal courts and the burden of

establishing the contrary rests upon the party asserting jurisdiction.” Hunter v. Philip

Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (quoting Abrego Abrego v. Dow

Chemical Co., 443 F.3d 676, 684 (9th Cir. 2006) (internal quotation marks omitted)).

Courts “strictly construe the removal statute against removal jurisdiction,” and “the

defendant always has the burden of establishing that removal is proper.” Gaus v. Miles,

Inc., 980 F.2d 564, 566 (9th Cir. 1992).

B. Timeliness

Under 28 U.S.C. § 1446(b), a notice of removal must be filed within thirty days of

the defendant’s receipt of the initial pleading, or, “if the case stated by the initial pleading

is not removable,” then the notice of removal must be filed within thirty days of the

defendant’s receipt “of a copy of an amended pleading, motion, order or other paper from

which it may first be ascertained that the case is one which is or has become removable.”

In other words, “[S]ection 1446(b) identifies two thirty-day periods for removing a

case.” Carvalho v. Equifax Information Services, LLC, 629 F.3d 876, 885 (9th Cir.

2010). “The first thirty-day removal period is triggered ‘if the case stated by the initial

pleading is removable on its face.’” Id. (quoting Harris v. Bankers Life & Casualty Co.,

425 F.3d 689, 694 (9th Cir. 2005)). “The second thirty-day removal period is triggered if

the initial pleading does not indicate that the case is removable, and the defendant

receives a copy of an amended pleading, motion, order or other paper from which

removability may first be ascertained.” Id. (internal quotation marks omitted). “If the

____________________________________________________________________________

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 8:19-cv-02426-JLS-JDE Date: March 11, 2020

Title: Sammy El-Said v. BMW of North America, LLC et al.

notice of removal was untimely, a plaintiff may move to remand the case back to state

court.” Id.

III. DISCUSSION

A. BMW’s Removal was Timely

Plaintiff argues that BMW’s removal is untimely because it came after the

expiration of the first thirty-day period set forth in 28 U.S.C. § 1446(b). (Mot. at 4-5.)

Plaintiff asserts that BMW can not rely on the sales contract as an “other paper” from

which removability can be ascertained because the sales contract was never filed with the

state court and under Ninth Circuit precedent, “the record of the state court is considered

the sole source from which to ascertain whether a case originally not removable has since

become removable.” (Mot. at 4 (citing Peabody v. Schroll Trust, 892 F.2d 772, 775 (9th

Cir. 1989)) (emphasis added by Plaintiff).) Under that logic, Plaintiff explains that the

second thirty-day window contemplated by 28 U.S.C. § 1446(b) was never triggered and

therefore, because BMW’s removal came more than thirty days after service of the

Complaint, it was untimely and remand is required. (Id.)

Plaintiff’s literal reading of the Ninth Circuit’s language in Peabody neither

accounts for the circumstances of that case, nor comports with subsequent caselaw. In

Peabody, the Ninth Circuit explicitly mentioned the state court record because the court

was focused on explaining that documents filed in federal court do not trigger

§ 1446(b)’s second thirty-day window. 892 F.2d at 775. Later Ninth Circuit decisions

have made clear that there is no blanket rule “that only documents actually filed in state

court can constitute ‘other paper’ that triggers the [second] thirty-day removal window

under § 1446(b).” Rider v. Sears Roebuck & Co., No. CV 11-2700 GAF (FMOx), 2011

WL 2222171, at *3 (C.D. Cal. June 7, 2011) (addressing an argument identical to

Plaintiff’s). For example, in Carvalho, the Ninth Circuit held that deposition testimony

indicating removability qualified as “other paper” triggering the second thirty-day

window and made no indication that a deposition transcript was required to be filed with

the state court to render removal proper. 629 F.3d at 886; see Durham v. Lockheed

____________________________________________________________________________

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 8:19-cv-02426-JLS-JDE Date: March 11, 2020

Title: Sammy El-Said v. BMW of North America, LLC et al.

Martin Corp., 445 F.3d 1247, 1254 (9th Cir. 2006) (reaching the same conclusion as to

responses to interrogatories). This understanding is more consistent with the plain

language of 28 U.S.C. § 1446(b), which makes reference to receipt by Defendant, and not

by the state court, “of a copy of an amended pleading, motion, order or other paper”

indicating removability in the first instance.

Accordingly, the Court concludes that the sales contract governing Plaintiff’s

purchase of the Subject Vehicle is capable, upon receipt by BMW, of acting as an “other

paper from which it may first be ascertained that the case is one which is or has become

removable.” Because in this instance the sales contract was the first document in this

litigation indicating that the parties’ citizenship is diverse, the Court finds that BMW’s

receipt of the sales contract so acted and operated to trigger the second thirty-day removal

window provided for in 28 U.S.C. § 1446(b). As BMW filed its Notice of Removal

within thirty days after receiving the sales contract, the removal was timely

B. BMW’s Removal was Proper

As noted above, pursuant to 28 U.S.C. §§ 1332, 1441, removal owing to an

exercise of diversity jurisdiction is proper when there is complete diversity among the

parties and the amount in controversy exceeds $75,000. Here, because BMW is an LLC

and its sole member, BMW (US) Holding Corporation, is a citizen of Delaware and New

Jersey1, Defendant BMW is in turn a citizen of Delaware and New Jersey. Notice of

Removal ¶ 13; Notice of Interested Parties, Doc. 4; Johnson v. Columbia Properties

Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006) (“like a partnership, an LLC is a

citizen of every state of which its owners/members are citizens”). The sales contract lists

a San Bernardino County address for Plaintiff, showing that he is a resident of California,

and thereby indicating that Plaintiff is domiciled in California, and thus a citizen of

1 In determining the citizenship of a corporation for diversity jurisdiction purposes, “a

corporation shall be deemed to be a citizen of every State . . . by which it has been incorporated

and of the State . . . where it has its principal place of business.” 28 U.S.C. § 1332(c)(1). BMW

(US) Holding Corporation is incorporated in Delaware and has its principal place of business in

New Jersey. (Opp. at 5; Notice of Removal ¶ 14.)

____________________________________________________________________________

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 8:19-cv-02426-JLS-JDE Date: March 11, 2020

Title: Sammy El-Said v. BMW of North America, LLC et al.

California.2 (Sales Contract at 1, Notice of Removal Ex. C, Doc. 1-4.) In his Motion,

Plaintiff does not dispute that he is a California domiciliary and citizen. (See Mot.) As

such, it is apparent that the parties are diverse. And it is facially apparent from the

Complaint’s references to Plaintiff’s asserted entitlement to actual damages, civil

penalties, rescission, restitution, and attorney’s fees totaling in excess of $175,385.56,

that the $75,000 jurisdictional threshold has been exceeded.

Consequently, the Court concludes that BMW’s removal on diversity jurisdiction

grounds was proper.

C. Plaintiff’s Request for Fees

Plaintiff requests an award of sanctions against BMW in the amount of

“Plaintiff’[s] reasonably incurred attorney’s fees, costs, and expenses” associated with the

bringing of this Motion. (Mot. at 6-7.) In essence, despite the fact that BMW met and

conferred with Plaintiff prior to Plaintiff’s filing of this Motion, Plaintiff asks the Court

to award fees because BMW (1) failed to convince Plaintiff not to file the instant Motion

and (2) would not stipulate to a remand of this case. (Id. at 7.) Aside from his tenuous

assertion that BMW failed to comply with Local Rule 7-3, Plaintiff provides no legal

basis for his fees request. (See id. at 6-7.) Indeed, it is Plaintiff’s motion—not BMW’s

opposition—that borders on frivolous.

The Court finds that BMW did not violate Local Rule 7-3 and DENIES Plaintiff’s

request for fees.

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion to Remand is DENIED.

2 “The natural person's state citizenship is [] determined by her state of domicile, not her state of

residence. A person's domicile is her permanent home, where she resides with the intention to

remain or to which she intends to return.” Kanter v. Warner-Lambert Co., 265 F.3d 853, 857

(9th Cir. 2001).

____________________________________________________________________________

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 8:19-cv-02426-JLS-JDE Date: March 11, 2020

Title: Sammy El-Said v. BMW of North America, LLC et al.

Initials of Preparer: tg