Cittadino v. BrandSafway Services, LLC

6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 ----oo0oo---- SULLIVAN CITTADINO, No. 2:23-cv-00322 WBS JDP 11 Plaintiff, 12 v. MEMORANDUM AND ORDER RE: PLAINTIFF’S MOTION TO REMAND BRANDSAFWAY SERVICES, LLC; BRAND INDUSTRIAL SERVICES, INC.; BRANDSAFWAY INDUSTRIES, LLC; SAFWAY GROUP HOLDING, LLC; and DOES 1 through 20, inclusive, Defendants.

----oo0oo---- Plaintiff Sullivan Cittadino brought this action in Solano County Superior Court against BrandSafway Services, LLC; Brand Industrial Services, Inc.; BrandSafway Industries, LLC; and Safway Group Holding, LLC (collectively “defendants”), alleging breach of an implied employment contract, and violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 25 17200 et seq. (Compl. (Docket No. 1-1).) Defendants removed the action to this court based on diversity. (Notice of Removal (Docket No. 1).) Plaintiff now moves to remand.1 (Mot. (Docket No. 8).)

3 “Under 28 U.S.C. § 1441, a defendant may remove an action filed in state court to federal court if the federal court would have original subject matter jurisdiction over the action.”

6 Moore-Thomas v. Ala. Airlines, Inc., 553 F.3d 1241, 1243 (9th Cir. 2009). Federal courts have original jurisdiction over cases where complete diversity exists between the parties and the amount in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a). Complete diversity requires that each plaintiff is of a different citizenship than each defendant.

12 Grancare, LLC v. Thrower, 889 F.3d 543, 548 (9th Cir. 2018).

13 There is a “strong presumption” against exercising removal jurisdiction, which “must be rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (internal citations omitted).

18 I. Forum Selection Clause 19 Plaintiff first argues that the parties are bound by an agreement containing a forum selection clause. The agreement at issue, titled “Confidentiality, Non-Solicitation and Invention Assignment Agreement,” provides in relevant part: 23 Consent to Jurisdiction. Manager [plaintiff] hereby irrevocably submits to the jurisdiction of state courts in 24 Los Angeles County, California, in any action or proceeding arising out of or relating to this Agreement, and Manager 25 hereby irrevocably consents to personal jurisdiction in, and The court takes this motion under submission and decides it without the need for oral argument. Defendant also moved to dismiss the case. The court addresses that motion in a separate order.

1 agrees that all claims in respect to such action or proceeding may be heard and determined in any such court as 2 selected by the Company . . . Nothing within this paragraph shall affect the Company’s right to bring any action or 3 proceeding against Manager in any court of competent jurisdiction. (Docket No. 8-2 ¶ 14 (formatting in original).)

Plaintiff’s argument fails for multiple reasons.

First, the agreement only pertains to confidentiality, non- solicitation, and invention assignments, none of which are at issue here. (See generally id.) Second, even if the agreement did cover this dispute, the agreement’s consent to jurisdiction “does not mean that the same subject matter cannot be litigated in any other court,” as it is “permissive rather than mandatory.”

See Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 77 (9th Cir. 1987). “In comparison, in cases in which forum selection clauses have been held to require litigation in a particular court, the language of the clauses clearly required exclusive jurisdiction.” Id.; see also Calisher & Assocs., Inc. v. RGCMC, LLC, No. cv-08-06523 MMM EX, 2008 WL 4949041, at *4 (C.D. Cal. Nov. 17, 2008), aff’d, 373 F. App’x 697 (9th Cir. 2010) (“A forum selection clause is permissive when the parties merely consent to bestow jurisdiction on a court without stating that the court has exclusive jurisdiction to hear their disputes.”); Animal Film, LLC v. D.E.J. Prods., Inc., 193 Cal. 23 App. 4th 466, 472 (Cal. 2d Dist. 2011) (explaining that California courts have found forum selection clauses to be mandatory only when they contain “language of exclusivity”).

Accordingly, the agreement does not contain a forum selection clause precluding this court from exercising jurisdiction.

1 II. Diversity 2 Plaintiff next argues that defendants’ notice of removal is deficient in that it fails to adequately identify the citizenship of each relevant party. This argument is perplexing, as the notice of removal does in fact identify and explain the citizenship of all relevant parties. (See Notice of Removal ¶¶ 13-21.) In opposing this motion, defendants have also provided a declaration explaining the citizenship of each party. (See Decl.

9 of Bjorn Erland (“Erland Decl.”) (Docket No. 17-1).)

10 There is one corporate defendant, Brand Industrial Services, Inc. “For purposes of determining diversity jurisdiction, ‘a corporation shall be deemed to be a citizen of every State . . . by which it has been incorporated and of the State . . . where it has its principal place of business.’” 3123 SMB LLC v. Horn, 880 F.3d 461, 462–63 (9th Cir. 2018) (quoting 28 16 U.S.C. § 1332(c)(1)). Defendants state that Brand Industrial Services, Inc.’s state of incorporation is Delaware and its principal place of business is Georgia. (Notice of Removal ¶¶ 14-17; Erland Decl. ¶ 4.) Because plaintiff does not appear to dispute either of these representations, the court concludes that Brand Industrial Services, Inc. is a citizen of Delaware and Georgia.

23 There are three LLC defendants: BrandSafway Industries, LLC; Safway Group Holding, LLC; and BrandSafway Services, LLC.

25 “For purposes of diversity jurisdiction, a limited liability company is a citizen of every state of which its owners/members are citizens.” 3123 SMB LLC, 880 F.3d at 465 (internal quotation marks omitted). Defendants’ notice of removal and declaration eee eee eee I I IID RN ONE IIE EO NE identify each member of each LLC, and plaintiff does not appear to dispute the accuracy of these representations. (See Notice of Removal (IJ 19-21; Erland Decl. {I 2-6.)

4 BrandSafway Industries, LLC’s sole member is Brand Industrial Projects, LLC. (See Notice of Removal 7 19; Erland Decl. @ 3.) Brand Industrial Projects, LLC’s sole member is Brand Shared Services, LLC, whose sole member is Brand Industrial Services, Inc. (Id.) As discussed above, Brand Industrial || Services, Inc. is a citizen of Delaware and Georgia. BrandSafway 10 Industries, LLC is therefore a citizen of Delaware and Georgia.

11 Safway Group Holding, LLC’s sole member is Brand 12 Industrial Services, Inc. (See Notice of Removal {I 20; Erland 13 Decl. @ 5.) Brand Industrial Services, Inc. is a citizen of 14 Delaware and Georgia. Safway Group Holding, LLC is therefore 15 also a citizen of Delaware and Georgia.

16 BrandSafway Services, LLC’s sole member is Safway Group 17 Holding, LLC, whose sole member is Brand Industrial Services, 18 Inc. (See Notice of Removal 7 21; Erland Decl. 7 6.) Brand 19 Industrial Services, Inc. is a citizen of Delaware and Georgia.

20 BrandSafway Services, LLC is therefore also a citizen of Delaware 21 and Georgia.

22 Based on the foregoing, each plaintiff is of a 23 different citizenship than each defendant. Accordingly, complete 24 diversity exists. See Grancare, 889 F.3d at 548.

25 IT IS THEREFORE ORDERED that plaintiff’s Motion to 26 Remand (Docket No. 8) be, and the same hereby is, DENIED.

27 | Dated: May 7, 2023 rbltitiomn~ Kh 2A. bt—~ WILLIAM B. SHUBB 28 UNITED STATES DISTRICT JUDGE