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Ninth Circuit:
Judge Anderson Remanded Case to LASC Without Following Prescribed Procedures
By a MetNews Staff Writer
District Court Judge Percy Anderson of the Central District of California erred in booting a case back to the Los Angeles Superior Court, based on his notion that there was no diversity of citizenship between the parties, without giving the defendant an opportunity to present evidence in support of its removal of the case to federal court, the Ninth U.S. Circuit Court of Appeals has held.
Defendant Elevance Health Companies, Inc. said in its notice of removal that “Plaintiff is a citizen of the State of California, Elevance Health is a corporation that is a citizen of the State of Indiana” co-defendant Michael Iovino “is a citizen of the State of Florida” and the action “involves an amount in controversy that exceeds the sum of $75,000.”
At a status conference held on March 22, 2023—five days after the removal—Anderson said that the fact that plaintiff Rhiannon Torgerson currently resides in California does not mean she is domiciled here. He declared:
“Now, to save everyone some time and money, the Court will waive Local Rule 6.1, which requires written motion if the plaintiff wishes to move at this time to remand this action back to the Los Angeles County Superior Court.
“Does the plaintiff wish to move to remand this action back to the Los Angeles County Superior Court at this time?”
Torgerson, who is suing for employment discrimination, said, “Yes, your honor.”
No Briefing
In response to the lawyer for the defendant asking to be allowed to submit additional information, Anderson responded:
“I’m not giving you leave. You had that when you filed the notice of removal...so I’m not doing that.”
Elevance said in its opening brief on appeal, filed by Steven B. Katz and Thy B. Bui of the Century City firm of Constangy, Brooks, Smith & Prophete LLP:
“The Supreme Court has squarely held that a notice of removal need only plausibly allege the elements of jurisdiction; it does not have to include enough evidence to show those elements….And if a party or the district court itself questions whether the court has jurisdiction, the district court must give the removing party notice and an opportunity to present evidence….
“That didn’t happen here.”
Ninth Circuit Opinion
The Ninth Circuit agreed, saying in Friday’s memorandum opinion:
“We have jurisdiction to review the remand order because the district court’s assertion that it lacked subject matter jurisdiction was not colorable….The district court erred as a matter of law in relying solely upon the allegations of the notice of removal to determine that federal subject matter jurisdiction was absent.”
The panel—comprised of Senior Judges Ferdinand F. Fernandez, Diarmuid F. O’Scannlain, and Barry G. Silverman—vacated Anderson’s order and directed the District Court to recall its remand and to let the Superior Court know it was yanking the case back.
The case is Torgerson v. Elevance Health Companies, Inc., 23-55377.
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