1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KENDRICK FOBB, Case No. 21-cv-07778-HSG 8 Plaintiff, ORDER DENYING MOTION TO REMAND 9 v. Re: Dkt. No. 21 10 UBER TECHNOLOGIES, INC., et al., 11 Defendants. 12 13 Pending before the Court is Plaintiffs’ motion to remand, briefing for which is complete. 14 Dkt. Nos. 21 (“Mot.”), 28 (“Opp.”), 31 (“Reply”). The Court finds this matter appropriate for 15 disposition without oral argument and the matter is deemed submitted. See Civil L.R. 7-1(b). For 16 the reasons discussed below, the Court DENIES the motion. 17 I. BACKGROUND 18 On September 3, 2021, Plaintiff Kendrick Fobb, a Louisiana resident, filed this action in 19 San Francisco Superior Court against Defendants Uber Technologies, Inc., Rasier, LLC, and 20 Rasier-CA, LLC, which are incorporated in Delaware with principal places of business in San 21 Francisco, California. See Dkt. No. 1, Ex. A. Plaintiff alleges that he was sexually assaulted and 22 battered by a driver during an Uber ride and sustained physical and psychological injuries as a 23 result. Id. ¶¶ 58, 68. Plaintiff asserts that Defendants were negligent in protecting the safety of 24 passengers and in their hiring, supervision, and retention of drivers. Id. ¶¶ 58-69. Plaintiff seeks 25 economic, non-economic, and punitive damages, among other awards. Id. ¶ 69. 26 On October 5, 2021, prior to being served, Defendants removed this action to federal court 27 under

(a). See Dkt. No. 1 ¶¶ 2-3. Plaintiff moved to remand, claiming that 1 barred by

(b)(2), also known as the forum defendant rule. See Mot. at 8-10. 1 2 Defendants argue that removal is not barred because they had not been served when they removed 3 the case. See Opp. at 2. 4 II. LEGAL STANDARD 5 A defendant may remove a state court action to federal court on the basis of diversity 6 jurisdiction. See 28 U.S.C § 1441; see also Rodriguez v. AT&T Mobility Servs. LLC,

(9th Cir. 2013) (“A defendant may remove to federal district court an action first brought 8 in state court when the district court would have original jurisdiction.”). As is relevant here, 9 diversity jurisdiction exists where the matter in controversy exceeds $75,000 and the dispute is 10 between citizens of different states.

(a). However, “[a] civil action otherwise 11 removable solely on the basis of [diversity] may not be removed if any of the parties in interest 12 properly joined and served as defendants is a citizen of the State in which such action is brought.” 13

(b)(2). 14 A case may be removed within 30 days after service of the complaint or summons on the 15 defendant and no later than one year after commencement of the action.

(b)-(c). 16 The removing party must file a notice “containing a short and plain statement of the grounds for 17 removal, together with a copy of all process, pleadings, and orders served upon” the defendant. 28

(a). Further, “[w]hen a civil action is removed [ ] under section 1441(a), all 19 defendants who have been properly joined and served must join in or consent to the removal of the 20 action.”

§ 1446(b)(2)(A). 21 “If a case is improperly removed, the federal court must remand the action because it has 22 no subject-matter jurisdiction to decide the case.” ARCO Envtl. Remediation, L.L.C. v. Dep’t of 23 Health & Envtl. Quality of Mont.,

(9th Cir. 2000). On a motion to remand, 24 federal courts must presume that a cause of action lies beyond its subject matter jurisdiction, 25 Hunter v. Philip Morris USA,

(9th Cir. 2009), and must reject federal 26 jurisdiction “if there is any doubt as to the right of removal in the first instance,” Gaus v. Miles, 27 1 Inc.,

(9th Cir. 1992). The removing party bears the burden of establishing 2 federal jurisdiction. See

at 566–67. 3 III. DISCUSSION 4 Under the plain language of Section 1441(b)(2), a defendant may not remove a case on 5 diversity grounds if any defendant who is a resident of the forum state has been “properly joined 6 and served.” See Monfort v. Adomani, Inc., No. 18-cv-05211-LHK,

, at *3 (N.D. 7 Cal. Jan. 8, 2019) (citing 28 U.S.C § 1441(b)(2)). At the time Defendants removed this action, 8 they had not been served. See Opp. at 3. Plaintiff argues that reading the “properly joined and 9 served” language in Section 1441(b)(2) to mean what it says permits a defendant to “engag[e] in 10 gamesmanship.” See Reply at 1-2. 11 The decisions in this district to have considered the question nearly unanimously support 12 Defendants’ position. See Loewen v. McDonnell, No. 19-cv-00467-YGR,

, at 13 *7 (N.D. Cal. June 5, 2019) (explaining that “the Northern District of California has consistently 14 held a defendant may remove an action prior to receiving proper service, even when the defendant 15 resides in the state in which the plaintiff filed the state claim”) (citing Sherman v. Haynes & 16 Boone, No. 5:14-CV-01064-PSG,

, at *1 (N.D. Cal. Aug. 22, 2014)). See also, 17 e.g., Saratoga Advantage Trust Tech. & Commc'n Portfolio v. Marvell Tech. Grp., Ltd., Case No. 18 15-CV-04881-RMW,

, at *2 (N.D. Cal. Dec. 21, 2015) (denying motion to 19 remand and stating that because the forum defendant “had not been served at the time of removal, 20 the forum defendant rule does not apply”); Carreon v. Alza Corp., No. C 09-5623 RS,

539392, at *1 (N.D. Cal. Feb. 9, 2010) (“Courts in this district have routinely applied [section 22 1441(b)] as it is written.”). As one court has explained, there is no basis to “conclude that strict 23 adherence to the language of [section] 1441(b) would be plainly at variance with the policy behind 24 the statute.” Loewen,

, at *8. The Court finds the reasoning of these cases 25 persuasive, and adopts it in finding that a plain reading of the statute allows pre-service removal 26 by a forum defendant.2 27 1 Without serious dispute, the requirements for diversity jurisdiction are otherwise met. See 2 ||

(a). Defendants, all incorporated in Delaware with principal places of business 3 in California, are diverse from Plaintiff, a citizen of Louisiana. Dkt. No. 1 {| 10-13. Defendants’ 4 || notice of removal was procedurally proper and includes “a plausible allegation that the amount in 5 controversy exceeds the jurisdictional threshold.” See Dart Cherokee Basin Operating Co. v. 6 Owens,

(2004); Dkt. No. 1 {ff 15-18. And Plaintiff does not credibly assert 7 that the amount in controversy is less than $75,000 or otherwise argue that the diversity 8 || requirements are not met. See Mot. at 5. 9 IV. CONCLUSION 10 The Court DENIES Plaintiffs motion to remand. 11 IT IS SO ORDERED. a 12 Dated: 3/3/2022

13 _Alauperl 8 Mbl_|p. HAYWOOD S. GILLIAM, JR. 14 United States District Judge 15

16

17

Z 18 19 20 21 22 23 24 25 26 one case, In re Roundup Products Liability Litigation, No. 16-md-02741-VC,

07 (N.D. Cal. Feb. 1, 2019), for this proposition. Neither Roundup nor any of the other district court decisions discussed above are “controlling law,” but to the extent the question is what weight to 28 give to persuasive authority, the Court agrees with the actual majority view in the Northern District.