holding the unnamed 20 “real party defendant in interest” must remove no later than 30-days after the unnamed party has 21 notice of the claims against it
How later courts described this case
- holding the unnamed 20 “real party defendant in interest” must remove no later than 30-days after the unnamed party has 21 notice of the claims against it
Written by the judges who cited it.
The opinion
1
2
3 UNITED STATES DISTRICT COURT
4 NORTHERN DISTRICT OF CALIFORNIA
5
6 DIAMOND GOOD, Case No. 22-cv-05622-JSC
7 Plaintiff,
ORDER ON MOTION TO REMAND
v.
8
Re: Dkt. No. 25
9 GOOGLE LLC, et al.,
Defendants.
10
11
12 Diamond Good (“Plaintiff”) brought this lawsuit against Google LLC, Meta Platforms,
13 Inc., Airbnb, Inc, WhatsApp LLC, Hipcamp, Inc., and the “Air France-KLM Group” in Santa
14 Clara County Superior Court. (Dkt. No. 1-1.)1 After carefully considering the arguments and
15 briefing submitted, the Court concludes oral argument is unnecessary, Civ. L.R. 7-1(b),
16 and GRANTS Plaintiff’s motion to remand. (Dkt. No. 25.) Societe Air France is not a defendant
17 in this matter and may not remove under 28 U.S.C. 1441(a). Air France-KLM Group’s request for
18 leave to amend Societe Air France’s Notice of Removal is DENIED because Societe Air France
19 filed the notice of removal in the first instance. (Dkt. No. 98.) The matter is remanded to the
20 Santa Clara County Superior Court. All other pending motions are terminated as moot.
21 BACKGROUND
22 Plaintiff’s first amended complaint (“FAC”) concerned, in part, the cancellation of a flight
23 ticket from Nigeria to an unknown destination. (Id. at 7.) Plaintiff attempted service of process
24 on the Air France-KLM Group at 125 West 55th Street, Floor 2, Manhattan, NY 10019. (Dkt. No.
25 1-2.) That address is, in fact, the location Air France-KLM Group’s subsidiary, the airline “Societe
26 Air France.” (Dkt. Nos. 2 at 1; 37-2 at 4.)
27
1 I. The Original Notice of Removal
2 Societe Air France appeared, removed the case to this Court, and indicated it had been
3 “incorrectly named as Air France-KLM Group.” (Dkt. No. 1.) Societe Air France explained the
4 Air France-KLM Group is a parent holding company, not an airline. (Dkt. No. 37-1 ¶ 14.) As a
5 subsidiary airline, Societe Air France removed this matter under a treaty governing international
6 air carriage between member states (the “Montreal Convention”). (Dkt. No. 1); see also
7 Convention for Int’l Carriage by Air, S. Treaty Doc. No. 106-45 (May 28, 1999). Societe Air
8 France then filed a motion to dismiss the claims against the Air France-KLM Group, based on
9 personal jurisdiction arguments specific to the parent company Air France-KLM Group. (Dkt. No.
10 37 at 12.) Societe Air France also later opposed Plaintiff’s motion to “compel appearance of Air
11 France-KLM Group,” arguing on behalf of both Societe Air France and the Air France-KLM
12 Group. (Dkt No. 93 at 2.) Thus, Societe Air France’s counsel seems to be litigating on behalf of
13 both Societe Air France and Air France-KLM Group, despite claiming to represent only Societe
14 Air France until recently. (Compare Dkt. No. 1 at 3 with Dkt. No. 98 at 12.)
15 “The text of 28 U.S.C. § 1441(a) authorizes only a ‘defendant or the defendants’ to
16 remove an action to federal court.” Sharma v. HSI Asset Loan Obligation Tr. 2007-1 by Deutsche
17 Bank Nat’l Tr. Co., 23 F.4th 1167, 1169 (9th Cir. 2022). Because the FAC repeatedly names the
18 Air France-KLM Group as a defendant, the Court ordered Societe Air France to explain its
19 authority to remove this matter as an “incorrectly named” defendant, while also filing motions
20 with arguments relevant to the named defendant—the Air France-KLM Group. (Dkt. No. 92.)
21 Societe Air France responded, arguing it can remove because Societe Air France was an
22 intended, named defendant in the complaint. (Dkt. No. 96 at 4.) In the alternative, Societe Air
23 France requested leave to amend the notice of removal. (Id. at 6.) Air France-KLM Group then
24 filed a request for leave to amend Societe Air France’s notice of removal. (Dkt. No. 98.)
25 DISCUSSION
26 “A defendant seeking removal has the burden to establish that removal is proper.” Canela
27 v. Costco Wholesale Corp., 971 F.3d 845, 849 (9th Cir. 2020) (cleaned up). “Federal jurisdiction
1 Miles, 980 F.2d 564, 566 (9th Cir. 1992). Here, there is substantial doubt as to a basis for federal
2 jurisdiction. Societe Air France is not a named defendant and cannot remove under 28 U.S.C.
3 § 1441(a). Sharma, 23 F.4th at 1171. And, neither Air France-KLM Group nor Societe Air
4 France may amend the notice of removal. As a result, the Court GRANTS Plaintiff’s motion for
5 remand.
6 I. Societe Air France’s Response to the Order to Show Cause
7 Societe Air France cannot remove this matter under 28 U.S.C. § 1441(a). “The text of 28
8 U.S.C. § 1441(a) authorizes only a ‘defendant or the defendants’ to remove an action to federal
9 court.” Sharma, 23 F.4th at 1171. Because the complaint names Air France-KLM Group as the
10 actual defendant in this matter, Societe Air France cannot remove under 28 U.S.C. § 1441(a).
11 A. The La Russo Rule
12 To the extent Societe Air France attempts to remove as a misnamed “real party defendant
13 in interest,” that argument fails under 28 U.S.C. § 1441(a) and binding Ninth Circuit precedent.
14 Sharma, 23 F.4th at 1171. In its OSC response, Societe Air France points to the “La Russo rule.”
15 (Dkt. No. 96 at 2.) The La Russo rule provides that an unnamed “real party defendant in interest”
16 can remove a lawsuit to federal court when a plaintiff incorrectly or improperly names the wrong
17 defendant in its pleadings. Sharma, 23 F.4th at 1171 (quoting La Russo v. St. George’s University
18 School of Medicine, 747 F.3d 90, 96 (2d Cir. 2014)). Under La Russo, the power to remove also
19 comes with the responsibility to do so promptly. La Russo, 747 F.3d at 96 (holding the unnamed
20 “real party defendant in interest” must remove no later than 30-days after the unnamed party has
21 notice of the claims against it). Societe Air France states that “[f]acing uncertain facts and law,
22 Air France-KLM Group filed its Notice of Removal (Dkt. No. 1) and identified itself as an
23 incorrectly named defendant. This was done to avoid the [30-day deadline for removal] and to
24 place Plaintiff on notice of her misnomer and its possible jurisdictional and statute of limitation
25 implications.”2 (Dkt. No. 96 at 3.)
26
27 2 This representation misstates the factual record in this case. “Air France-KLM Group” did not
1 But the Ninth Circuit rejected the La Russo rule in Sharma v. HSI Asset Loan Obligation
2 Tr. 2007-1 by Deutsche Bank National Trading Company, 23 F.4th 1167, 1169 (9th Cir. 2022).3
3 Rather, the Ninth Circuit held: “Constrained by the text of § 1441(a), we decline to follow the
4 Second Circuit’s La Russo rule, but instead hold that only the actual named ‘defendant or the
5 defendants’ may remove a case under that removal provision.” Sharma, 23 F.4th at 1173.
6 According to Sharma:
[T]he district court erred when it stated that “[e]ven when a party is
7 not named in an action, such as when the party is mistakenly omitted
from the initial complaint or a plaintiff names the wrong defendant,
8 the intended defendant is allowed to remove to federal court.”
Because no actual defendant removed this case, the district court
9 should have remanded it to state court.
10 Id. at 1171. In other words, a misnamed defendant cannot remove under 28 U.S.C. § 1441(a).
11 Thus, to the extent Societe Air France relies on La Russo to justify removal as a misnamed party
12 that Plaintiff intended to sue, that argument fails under Sharma.
13 B. Societe Air France is not a named defendant.
14 To avoid Sharma, Societe Air France now maintains the airline was named in the
15 complaint’s allegations and thus can remove under 28 U.S.C. § 1441(a). (Dkt. No. 96 at 4.) It is
16 undisputed that Air France-KLM Group appears in the FAC’s caption. (Dkt. No. 1-1.) But “[t]he
17 question of whether a defendant is properly in a case is not resolved by merely reading the caption
18 of a complaint. Rather, a party may be properly in a case if the allegations in the body of the
19 complaint make it plain that the party is intended as a defendant.” Rice v. Hamilton Air Force
20 Base Commissary, 720 F.2d 1082, 1085 (9th Cir. 1983). In Rice, the Court held that a defendant
21 who was unnamed in a case caption but named in the body of the complaint was a proper
22 “intended” defendant in the case. Id. There is some tension between this “intended defendant”
23 doctrine in Rice, id., and the language regarding “actual defendant[s]” in Sharma, 23 F.4th at
24 1171. A defendant could thread the needle between Rice and Sharma, if the defendant were
25 unnamed in the caption of the case, but plainly “named” in the body of the complaint—and thus,
26
explained during this litigation, the two entities are not one and the same. (See, e.g., Dkt. No. 2.)
27
1 able to remove under 28 U.S.C. § 1441(a).
2 But that is not what happened here. Setting aside Societe Air France’s numerous
3 representations that it had been misnamed, (see, e.g, Dkt. Nos. 1, 2, 37, 93, 96), Air France-KLM
4 Group is named in the caption and the “body of the complaint [does not] make it plain that
5 [Societe Air France] is intended as a defendant,” Rice, 720 F.2d at 1085. First, unlike in Rice, the
6 FAC and the summons named the “Air France-KLM Group” as a defendant, not Societe Air
7 France. (Dkt. Nos. 1-1, 1-2.) Second, the body of the complaint repeatedly states allegations
8 against the “Air France-KLM Group.” For example, Plaintiff states “Air France-KLM Group’s
9 role was to keep me in Nigeria where I was in danger,” “I asked Air France-KLM Group
10 employees at the airport in Nigeria to reinstate my flight booking,” “I called Air France-KLM
11 Group,” “I asked Air France-KLM airport staff again for help,” “Air France-KLM Group
12 informed me they will not refund the cost difference,” “Air France-KLM sent me the message
13 informing me…[,]” “Air France-KLM Group’s job was to cancel my flight to keep me in Nigeria
14 so I would be hurt[.]” (Dkt. No. 1-1 at 7.) While on two occasions Plaintiff does begin allegations
15 with just the name “Air France,” (id.), the overall body of the allegations does not make it “plain”
16 that Plaintiff named Societe Air France as a defendant rather than the Air France-KLM Group.
17 Rice, 720 F.2d at 1085. Thus, “[f]ederal jurisdiction must be rejected” because there is “doubt as
18 to the right of removal in the first instance.” Gaus, 980 F.2d at 566.
19 * * *
20 In sum, “[t]he text of 28 U.S.C. § 1441(a) authorizes only a ‘defendant or the defendants’
21 to remove an action to federal court.” Sharma, 23 F.4th at 1171. Societe Air France filed the
22 notice of removal. (Dkt. No. 1). But Societe Air France is not a named defendant here, Air
23 France-KLM Group is. (Dkt. No. 1-1.) Thus, Societe Air France’s removal fails.
24 II. Leave to Amend the Notice of Removal
25 In the alternative, Societe Air France and the Air France-KLM Group separately request
26 leave to amend the notice of removal to state that Air France-KLM Group is now the removing
27 party. (Dkt. No. 96 at 6; Dkt No. 98.) Air France-KLM Group removes based on the exact same
1 (Dkt. No. 1; Dkt. No. 98 at 6.) Societe Air France and the Air France-KLM Group call this
2 amended notice a “technical” correction to remedy the “misnomer” issue. (Dkt. No. 98 at 2, 7.)
3 Neither Air France-KLM Group nor Societe Air France may amend the notice of removal
4 || here. A defendant may amend its notice of removal to correct defective jurisdictional
5 allegations—such as the failure to specify a party’s citizenship—so long as the basis for removal
6 (e.g., diversity jurisdiction) remains the same as in the original notice of removal. ARCO Env’t
7 || Remediation, L.L.C. v. Dep’t of Health & Env’t Quality of Montana, 213 F.3d 1108, 1117 (9th Cir.
8 2000); see also 28 U.S.C. § 1653. But Air France-KLM Group cannot amend its notice of
9 || removal, because Air France-KLM Group did not file a notice of removal. Societe Air France—a
10 || non-party—did so. (Dkt. No. 1.) Air France-KLM Group cites no authority allowing a defendant
11 that did not initially remove a case—such as the Air France-KLM Group—to amend a notice of
12 || removal filed by a non-party—like Societe Air France. Such an amendment goes beyond the
5 13 “form” or “jurisdictional allegations” in the notice of removal. Ireland v. Centralbanc Mortg.
14 || Corp., No. 5:12-CV-02991 EJD, 2012 WL 4181418, at *3 (N.D. Cal. Sept. 18, 2012) (allowing
3 15 amendment where the removing defendants failed to include consent statement from a non-served
a 16 defendant). Put differently, the failure here was Societe Air France’s authority to invoke 28 U.S.C.
3 17 § 1441(a), not the notice of removal’s sufficiency under 28 U.S.C. § 1446. As explained above,
18 non-defendant Societe Air France had no authority to remove under 28 U.S.C. § 1441(a). Sharma,
19 || 23 F.4th at 1171. Thus, Air France-KLM Group and Societe Air France’s requests to amend the
20 || original notice of removal are denied.
21 CONCLUSION
22 Plaintiff's motion to remand is GRANTED. (Dkt. No. 25.) The matter is remanded to the
23 Santa Clara County Superior Court. All other pending motions are terminated as moot. This
24 Order disposes of Docket Nos. 13, 18, 25, 33, 37, 49, 50, 52, 54, 60, 66, 75, 77, 79, 89, 90, 98.
25 IT IS SO ORDERED.
26 Dated: December 6, 2022
27 gut et □□
28 JAGQUELINE SCOTT CORL
United States District Judge