Case 2:15-cv-07503-MWF-JC Document 11 Filed 10/26/15 Page 1 of 8 Page ID #:337

1 ANAND LAW, PC

BRANDON J. ANAND (SBN 262183)

brandon@anandlaw.com
3 5455 Wilshire Blvd., Suite 1812
Los Angeles, CA 90036
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Telephone: (323) 325-3389
5 Facsimile: (323) 488-9659
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CULPEPPER LAW GROUPE

7 THADDEUS J. CULPEPPER (SBN 220194)

8 710 S. Garfield Avenue

Alhambra, CA 91801

9 T: (626) 786-2779

F: (626) 380-1577

11 Attorneys for Plaintiff JANE DOE

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

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16 JANE DOE (A Pseudonym),

Case No. CV 15-7503-MWF(JCx)

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Complaint Filed: August 26, 2015

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Plaintiff,

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v.

MOTION TO REMAND

20 DERRICK ROSE, an Individual;

RANDALL HAMPTON, an
Individual; RYAN ALLEN, an
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[Declaration of Brandon J. Anand Filed

Concurrently Herewith]
Judge:
Hon. Michael W. Fitzgerald
Courtroom: 1600

Defendants.
Hearing Date: December 7, 2015
Hearing Time: 10:00 A.M.

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Motion to Remand

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INTRODUCTION
The underlying action was removed by Defendant Derrick Rose (Defendant

3 Rose) on September 24, 2015. As reflected in the notice, the basis for removal was
4 diversity jurisdiction. Plaintiff requests that the Court grant the underlying motion
5 and remand this action to state court.
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A declaration containing an averment of the other defendants consent to the

7 removal must accompany a Notice of Removal. No such declaration was provided.

8 In addition, Defendant Rose cannot meet the burden necessary to establish diversity
9 jurisdiction. Finally, the underlying complaint relies solely on state law.

Based

11 remanded to state court.

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LEGAL ARGUMENT
A. The Removal of the Underlying Action Was Defective as a Result of the
Failure to Provide Adequate Evidence that the Co-Defendants Consented
to the Removal

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10 upon the foregoing, the removal is invalid and the underlying action must be

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As a general rule, the failure of all the defendants to join in a removal notice
based on diversity jurisdiction constitutes a procedural defect and the case must be
remanded. Parrino v. FHP, Inc., 146 F.3d 699, 703 (9th Cir. 1998) [superseded by
statute only as to removal based solely on federal-question jurisdiction]. At the
least, the removing defendant is first required to obtain the co-defendants consent.
In order for the removal to be valid, sufficient proof of this consent must be
contained in the removal documents. Mainly, the removal notice must contain an
averment of the other defendants consent to the removal.

Specifically, the

averment must confirm that the other co-defendants were notified of the removal
notice and had an opportunity to object to it. Proctor v. Vishay Intertechnology 584
F.3d 1208, 1225 (9th Cir. 2009).
Nothing in the Notice of Removal reflect that the other co-defendants were
Motion to Remand

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1 notified of the removal or had an opportunity to object to it. Instead, all that is
2 mentioned in regards to the co-defendants is that they are domiciled in Chicago,
3 Illinois and that neither of them intends to move from Chicago. (See
4 Declaration of Derrick Rose, paragraph 3). Based upon the rule enunciated in
5 Proctor, the foregoing testimony, which lacks averment, is insufficient.
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Moreover, Defendant cannot meet the Proctor standard.

In Proctor, the

7 nonmoving codefendant must know of the removal petition and have had adequate
8 time to object to it. Here, because the remaining codefendants have yet to be served,
9 they of necessity cannot have knowledge of Roses removal petition nor have had

11 the case must be remanded.

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B. It is Defendants Burden to Justify that Removal is Proper and Defendant

Cannot Meet This Burden

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10 adequate time to object thereby. As a result, the removal was and is defective and

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On a motion to remand, it is the removing defendant's burden to establish

federal jurisdiction. The state courts have a right to decide their own controversies.
Thus, the court must strictly construe removal statutes against removal jurisdiction.
Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009).
The strong presumption against removal jurisdiction means that the defendant
always has the burden of establishing that removal is proper, and that the court
resolves all ambiguity in favor of remand to state court.

Ravishanker v. Mphasis

Infrastructure Servs.,2015 U.S. Dist. LEXIS 142591, *3 (N.D. Cal. Oct. 20, 2015).
See, also, Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992); Ross v. Stranger,
2011 U.S. Dist. LEXIS 43413, *3, 2011 WL 1431517 (N.D. Cal. Apr. 14, 2011).
As stated previously, Defendant has already gotten off on the wrong foot in
remanding the underlying action. This is due to the fact that his attorney neglected
to obtain the co-defendants consent prior to removing the action. In addition to the
foregoing glaring defect, Defendant cannot establish diversity jurisdiction sufficient
Motion to Remand

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1 to justify removal.
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C. Defendant Cannot Meet the Legal Burden Necessary to Establish Diversity

Jurisdiction and the Undisputed Facts Prove that Defendants Domicile is
in California
1. Burden in Establishing Diversity Jurisdiction

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When diversity jurisdiction is challenged, the party invoking it must establish

the citizenship of each real party in interest by a preponderance of evidence. A
party's mere allegation of diversity does not satisfy this burden. See, Ravishanker,
2015 U.S. Dist. LEXIS at *6-7 (N.D. Cal. Oct. 20, 2015); Gaus, ante, 980 F.2d 564
at 567 (9th Cir. 1992). Moreover, a partys residence and mere statements of intent
are not controlling. Ross v. Stranger, 2011 U.S. Dist. LEXIS 43413, *15, 2011 WL
1431517 (N.D. Cal. Apr. 14, 2011).
Instead, a court must look to the facts alleged in the complaint and ignore
mere conclusory allegations of jurisdiction. Roche v. Lincoln Prop. Co., 373 F.3d
610, 617-618 (4th Cir. 2004).
Where, as here, there is evidence that a party has multiple residences, or the
residence is unclear, the court must focus on the intent of the party. In ascertaining
the intent of the party, that party's entire course of conduct may be taken into
account. The party's own statements concerning his intentions are relevant, but they
are of slight weight when they come into conflict with other facts that tend to
disclose a contrary intent. See District of Columbia v. Murphy, 314 U.S. 441, 456,
86 L. Ed. 329, 62 S. Ct. 303 (1941); State of Texas v. State of Florida, 306 U.S. 398,
425, 83 L. Ed. 817, 59 S. Ct. 563 (1939). Bevilaqua v. Bernstein (S.D.N.Y. 1986)
642 F.Supp. 1072, 1074. See, also, Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 1986)
[No single factor controls the determination of ones domicile].
The party must justify his jurisdictional allegations by a preponderance of
evidence. Ravishanker v. Mphasis Infrastructure Servs., 2015 U.S. Dist. LEXIS
Motion to Remand

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1 142591, *6 (N.D. Cal. Oct. 20, 2015). If there are doubts as to the courts
2 jurisdiction, remand of the case is required pursuant to 28 U.S.C. 1447(c). Any
3 doubts are therefore resolved against finding diversity jurisdiction and when the
4 case has been removed to federal court, in favor of remand to the state court. China
5 Basin Properties, Ltd. v. Allendale Mut. Ins. Co., 818 F. Supp. 1301, 1303 (N.D.
6 Cal. 1992).
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2. The Undisputed Facts Prove that Defendants Domicile is California

Defendant Rose has been domiciled in California since at least 2011, the year

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including almost his entire his off-season time, living in Los Angeles County. In
2011, he moved to California with an intention to remain indefinitely. Subsequent
to his change in domicile, he has never made an intention to remain anywhere else.
While Defendant now states that he has never been a citizen of California and

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of the NBA lockout 1. Well before 2011, Defendant Rose spent substantial time,

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has no intent to leave [the State of Illinois], this is directly contradicted by his own
statement from 2009 (while staying in Santa Monica for the offseason): [Acting] is
something I would love doing as I playI love playing in [Los Angeles]. Besides
Chicago, I love playing out here all the time. You got great weather. If you want to
do something you can go eat anywhere. Shop anywhere. Get rest. People really
dont care who you are out here because you have some people that are bigger than
you out here. So they dont really care about who you are. They just let you
beProbably, Ill move out [to Los Angeles] for real though. Aspiring Actor
Rose Loves L.A., ESPN, 11/29/2009 [Reprinted in Derrick Rose: I want to come
to L.A. and become a movie star, InsideHoops.com, 12/1/2009] (Both articles
attached hereto as Exhibit 1).
At the first opportunity he had, Defendant Rose did just that: he moved to Los

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The fourth NBA lockout, the result of failed negotiations between the team owners and players,
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Motion to Remand

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1 Angeles the year of the lockout when games were not being played and he was not
2 forced to reside in Chicago for work purposes.
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Defendants own text messages from just prior to and after the incident giving

4 rise to Plaintiffs complaint provide further evidence that his domicile is California.
5 On August 26, 2013, Defendant sent his Beverly Hills, California address to
6 Plaintiff via text message. See, Anand Declaration at Paragraph 3 and Exhibit 2
7 attached thereto which contains a true and correct copy of the text messages sent
8 from Defendant to Plaintiff. On August 31, 2013, Defendant sent a text message to
9 Plaintiff which referred to the Beverly Hills residence as his home. See, Anand

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10 Declaration at Paragraph 4 and Exhibit 3 attached hereto which contains a true and
11 correct copy of the text messages sent from Defendant to Plaintiff.
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On August 10, 2015, fifteen days prior to the filing of the complaint,

13 Defendant Rose was again in Los Angeles, as he routinely is during the NBA
14 offseason. See, Derrick Rose visits Dodger Stadium; Cubs, White Sox less than
15 thrilled, Chicago Tribune, August 10, 2015 [Rose said in May that he'd be
16 spending the majority of his offseason in Santa Monica] attached hereto as Exhibit
17 4. See, also, Derrick Rose spends the day at Dodger Stadium in Los Angeles with
18 his son, The Bulls Times, August 11, 2015 [Derrick Rose decided to spend the
19 day watching a baseball game where he lives in the summer time.] attached hereto
20 as Exhibit 5; How Derrick Roses Visit To Dodger Stadium Upset The Cubs And
21 White Sox, Uproxx, August 11, 2015 [Rose said in the spring after his Bulls were
22 eliminated from the Eastern Conference Semifinals that hed be spending his
23 summer in Santa Monica and not in his hometown of Chicago, or even Las Vegas
24 where USA Basketball is holding minicamps.] attached hereto as Exhibit 6.
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The foregoing facts prove both that Defendant has not met his burden in

26 establishing diversity jurisdiction.

In addition, these facts clearly illustrate that

27 Defendants actual domicile is California. Clearly, Defendant only resides in the

28 State of Illinois when he is required to play basketball for the Chicago Bulls. At all
Motion to Remand

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1 other times, his home is California which he unequivocally considers his permanent
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D. The Well-Pleaded Complaint Rule Requires that the Underlying Action be

Remanded to State Court

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Whether federal question jurisdiction exists is determined by the well-pleaded

complaint which provides that federal jurisdiction exists only when a federal
question is presented on the face of the plaintiffs properly pleaded complaint.
Caterpillar v. Lewis 482 U.S. 386, 392 (1987). Removal is not appropriate and
remand is required where a plaintiffs well-pleaded complaint relies solely on state
law, and the resolution of a substantial federal question is not required. Franchise
Tax Bd., 463 U.S. 1, 2.
As reflected in the allegations contained in the underlying complaint, the
actions are based solely on state law. Simply put, there is no federal component
whatsoever. As a result, the action must be remanded.

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When diversity does not exist, federal-question jurisdiction is required.

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E. As Defendants Removal Was Improper Attorneys Fees Should be

Awarded to Plaintiff
Under 1447(c), a district court has discretion to "require payment of just

20 costs and any actual expenses, including attorney fees, incurred as a result of
21 [improper] removal." Jordan v. Nationstar Mortg. LLC, 781 F.3d 1178, 1184 (9th
22 Cir. 2015). The appropriate test for awarding fees under 1447(c) should recognize
23 the desire to deter removals sought for the purpose of prolonging litigation and
24 imposing costs on the opposing party. Martin v. Franklin Capital Corp., 546 U.S.
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Clearly, Defendants removal of the underlying action was improper. As a

27 result, Plaintiff should be awarded her reasonable attorneys fees. That amount is
28 $3,420. (See, Declaration of Brandon Anand at Paragraph 5)
Motion to Remand

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CONCLUSION
Based upon the foregoing arguments, it is respectfully requested that this

3 action be remanded and that attorneys fees in the amount of $3,420 be awarded in
4 favor of Plaintiff and against Defendant.
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ANAND LAW, PC

6 Dated: October 26, 2015

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By:

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BRANDON J. ANAND
Attorneys for Plaintiff

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Motion to Remand

Case No. CV 15-7503-MWF(JCx)