Li v. Mummah

Background

Scott A. Flaxman removed to federal court a cross-claim filed against him in Santa Clara County Superior Court. The court issued an order requiring Flaxman to explain why the case should not be remanded, or sent back, to state court. Flaxman responded and submitted exhibits. The court held hearings on January 11 and January 18, 2023. At the January 18 hearing, the court addressed whether any defects in the removal procedures had been waived.

Removal analysis

The court explained that 28 U.S.C. § 1441 generally permits a defendant to remove a state-court civil action when a federal district court would have original jurisdiction. Removal statutes are strictly construed against federal removal jurisdiction, and the removing party bears the burden of showing that removal was proper.

Relying on the Supreme Court’s decision in Home Depot U.S.A. v. Jackson and the Ninth Circuit’s application of that decision, the court held that “the defendant” in § 1441(a) means the party sued by the original plaintiff. A person brought into a case through a counterclaim or cross-claim cannot remove the action under that provision merely because a claim was filed against that person.

The court rejected Flaxman’s argument that Home Depot did not apply and concluded that an exception in § 1441(c) did not change § 1441(a)’s meaning. Flaxman was not a defendant in the complaint filed by the original plaintiff, Li. The court also found that Mummah had not waived the objection to removal.

Disposition

The court remanded the case to Santa Clara County Superior Court because Flaxman’s removal was improper. It did not award fees or costs to Mummah, finding that Mummah’s fees and costs were minimal and that Flaxman responded promptly to the order to show cause.

Flaxman’s separately filed motion for judgment on the pleadings was terminated in the federal court without prejudice. The clerk was directed to administratively close the federal case after remand.