Case 8:22-cv-01716-CJC-KES Document 34 Filed 11/03/22 Page 1 of 4 Page ID #:383 JS-6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 ) 12 ) ) Case No.: SACV 22-01716-CJC (KESx) 13 XUAN GENG, ) ) 14 ) Plaintiff, ) 15 ) ORDER REMANDING ACTION AND v. ) DENYING AS MOOT DEFENDANTS’ 16 ) MOTION TO QUASH SERVICE AND ) TO DISMISS [Dkt. 13]; MOTIONS TO 17 ) QUASH SERVICE, TO DISMISS, AND SHI CHE; ZHIYUAN CHE; ) TO SET ASIDE DEFAULT [Dkt. 19; 18 SHANDONG ORIENTAL OCEAN ) Dkt. 24]; AND MOTIONS TO DISMISS GROUP CO., LTD.; AVIOQ, INC.; ) [Dkt. 20; Dkt. 23; Dkt. 32] 19 ) CHAMROEN CHETTY; and DOES 3 ) 20 to 10, inclusive, ) ) 21 ) Defendants. ) 22 ) ) 23

24 I. INTRODUCTION & BACKGROUND 25

26 On September 23, 2020, Plaintiff Xuan Geng filed this action in the Superior Court 27 of California, County of Orange, against Defendants Shi Che, Zhiyuan Che, and 28

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1 Shandong Marine Group, Ltd., (see Dkt. 1 Ex. 1 [Complaint] at 5), and amended the 2 complaint on July 29, 2022, to drop Shandong Marine Group and add Defendants 3 Shandong Oriental Ocean Group Co., Ltd., Aviq, Inc., and Chameron Chetty, (see id. 4 Ex. 2 [First Amended Complaint, hereinafter “FAC”] at 10–11). Avioq and Chetty were 5 served on August 20, 2022. (See Dkt. 1 [Defendants Avioq, Inc. and Dr. Chamroen 6 Chetty’s Notice of Removal of Action, hereinafter “Notice”] ¶ 3.) Geng alleged causes 7 of action against Defendants for breach of contract and common counts for open book 8 account, account stated, and money had and received in connection with a loan 9 agreement. (See FAC ¶¶ 1, 21–40.) Avioq and Chetty then removed the action on 10 September 19, 2022, invoking this Court’s diversity jurisdiction. (See Notice ¶ 10.) 11 12 On September 23, 2022, the Court ordered Avioq and Chetty to show cause why 13 this action should not be remanded in light of concerns that they did not obtain the 14 consent of “all defendants who have been properly joined and served” before removal. 15 (Dkt. 12 [Order to Show Cause Why This Action Should Not Be Remanded] at 1 16 [quoting

(b)(2)(A)].) Avioq and Chetty responded on October 14 17 raising a separate jurisdictional issue—namely, complete diversity—as Geng clarified in 18 her second amended complaint that she was a citizen of the People’s Republic of China 19 (“PRC”), while Defendant Shi Che is also a citizen of the PRC. (See Dkt. 21 [Defendants 20 Avioq, Inc. and Dr. Chamroen (sic) Chetty’s Response to Order to Show Cause Why 21 This Action Should Not Be Remanded, hereinafter “Response”] at 2.) For the following 22 reasons, this matter is REMANDED to the Superior Court of California, County of 23 Orange.1 24 25 1 Because the Court remands this case for lack of subject matter jurisdiction, the Court DENIES AS 26 MOOT (1) Shandong Oriental Ocean Group’s motion to quash service and to dismiss, (Dkt. 13), 27 (2) Zhiyuan Che’s motions to quash service, to dismiss, and to set aside default, (Dkt. 19; Dkt. 24), (3) Shi Che’s motions to dismiss, (Dkt. 20; Dkt. 23), and (4) Avioq’s and Chetty’s motion to dismiss, 28 (Dkt. 32). Accordingly, the hearings set for November 14 and 28, 2022, are hereby vacated and removed from the calendar.

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1 II. DISCUSSION 2 3 “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power 4 authorized by Constitution and statute.’” Gunn v. Minton,

(2013) 5 (citation omitted). A federal district court has jurisdiction over a civil action removed 6 from state court only if the action could have been brought in the federal court originally. 7 See

(a). A court has diversity jurisdiction, moreover, when more than 8 $75,000 is in controversy and the citizenship of each plaintiff is different from that of 9 each defendant. See

§ 1332(a). “The ‘strong presumption’ against removal 10 jurisdiction means that the defendant always has the burden of establishing that removal 11 is proper.” Gaus v. Miles, Inc.,

(9th Cir. 1992). “Federal jurisdiction 12 must be rejected if there is any doubt as to the right of removal in the first instance.”

13 “[T]he subject matter jurisdiction of the district court is not a waivable matter and may be 14 raised at anytime by one of the parties, by motion or in the responsive pleadings, or sua 15 sponte by the trial or reviewing court.” Emrich v. Touche Ross & Co.,

, 16 1194 n.2 (9th Cir. 1988). 17 18 Avioq and Chetty have not met their burden to prove removal jurisdiction. Their 19 notice of removal argued that complete diversity existed because “Geng [was] a citizen of 20 the State of California and was at the time she initiated the lawsuit” and no defendant 21 shared Geng’s citizenship. (Notice ¶ 7.) All that they cited to support Geng’s citizenship 22 is the allegation in the first amended complaint that “Plaintiff is an individual residing in 23 Irvine, County of Orange, California.” (FAC ¶ 2 at 22; see also Notice ¶ 7 [citing the 24 FAC].) “But the diversity jurisdiction statute speaks of citizenship, not of residency. To 25 be a citizen of a state, a natural person must first be a citizen of the United States. The 26 natural person’s state citizenship is then determined by her state of domicile, not her state 27 of residence.” Kanter v. Warner-Lambert Co.,

(9th Cir. 2001) 28 (citations omitted).

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1 As Aviog and Chetty acknowledge, the second amended complaint—the filing of 2 || which they stipulated to, (see Dkt. 16 [Stipulation and (Proposed) Order Grating Leave to 3 || File Second Amended Complaint])—clarifies that Geng is a citizen of the PRC, (see 4 || Dkt. 25 [Second Amended Complaint] § 2). Because Shi Che is a citizen of the PRC, 5 ||(see Notice J 7), Geng’s similar citizenship defeats complete diversity and, with it, 6 ||removal jurisdiction. Indeed, Aviog and Chetty acknowledge that Geng’s allegations 7 ||“eliminate complete diversity” and “concede the court must remand this action,” 8 ||(Response at 2), which Geng does not oppose, (see Dkt. 22 [Plaintiff's Response to Order 9 ||to Show Cause and Consent to Remanded (sic)] at 2). Given Avioq’s and Chetty’s 10 || conceded inability to prove jurisdiction, remand is warranted. See, e.g., Unterleitner v. 11 || Basf Catalysts LLC, No. 16-cv-00818,

, at *3 (N.D. Cal. Mar. 2, 2016) 12 || “[G]iven [the defendant’s] concession that remand is proper, and in particular because it 13 || has not shown [complete diversity], remand is required.”); Christ v. Staples, Inc., No. CV 14 || 14-07784,

, at *9 (C.D. Cal. Jan. 20, 2015) (“As defendants concede, 15 || [the plaintiffs] are both California citizens. Consequently, complete diversity of 16 || citizenship is lacking, and the court must remand the case... .”). 17 is || U1. CONCLUSION 19 20 For the foregoing reasons, this action is REMANDED to the Superior Court of 21 || California, County of Orange. 22 23 DATED: November 3, 2022 Ko je 24 Sf / 25 CORMAC J. CARNEY 26 UNITED STATES DISTRICT JUDGE 27 28

A.