1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 ADAM SIMMS, et al., 10 Case No. 22-cv-07464-RS Plaintiffs, 11 v. ORDER GRANTING MOTION TO 12 REMAND BALBOA CAPITAL CORPORATION, et 13 al., 14 Defendants.

15 16 On November 23, 2022, Defendant Experian Information Solutions, Inc. (“Experian”), 17 removed this action from the California Superior Court for the County of Marin. See Dkt. 1. The 18 underlying action avers violations of the Fair Credit Reporting Act,

et seq., by 19 Experian and Defendant Balboa Capital Corporation (“Balboa”). Balboa moves to remand on the 20 basis that it did not (and does not) consent to Experian’s removal. This motion is suitable for 21 disposition without oral argument. See Civ. L.R. 7-1(b). 22 The motion is granted. The Notice of Removal indicates that subject matter jurisdiction 23 lies under

, that is, federal question jurisdiction. In an action removed under 24 federal question jurisdiction, “all defendants who have been properly joined and served must join 25 in or consent to the removal of action.”

(b). Experian argues it was relieved of 26 this requirement because it “reasonably believed that Balboa had not been served because (a) no 27 attorney had yet appeared in the state court case on behalf of Balboa, (b) no proof of service as to 1 This argument is unpersuasive. While the Ninth Circuit has not provided a standard for 2 || cases in this particular procedural posture, there appear to be only “a few narrow exceptions to the 3 |} unanimity requirement” for removal. Beltran v. Monterey Cnty., No. C 08-05194 JW,

585880, at *2 (N.D. Cal. Mar. 6, 2009). In similar circumstances, other district courts in the Ninth 5 Circuit have concluded that “[a] removing defendant must exercise due diligence to ascertain if 6 other defendants have been served.” /d. (alteration in original) (emphasis added) (quoting Orozco 7 || v. EquiFirst Corp., No. CV 08-

WL 5412364, at *1 (C.D. Cal. Dec. 22, 2008)). 8 || Here, Experian states that its counsel merely checked the state court docket twice and emailed 9 Balboa’s counsel once in the two days before the deadline to remove; when counsel did not 10 || receive a prompt response, the Notice of Removal was filed. See Dkt. 16, Declaration 4] 2—4. 11 Further, as Balboa argues, Experian never contacted Plaintiffs’ counsel to ascertain whether 12 || Balboa had been served; doing so could have revealed that Balboa had been served weeks earlier. 5 13 Taken altogether, this does not constitute due diligence. See also Orozco,

, at *1 14 (“[S]imply checking if a proof of service has been filed with the court is insufficient.”). Given this, 3 15 as well as the Ninth Circuit’s “strong presumption against removal jurisdiction,” remand is proper. 16 Gaus v. Miles, Inc.,

(9th Cir. 1992) (quotation marks omitted).! 3 17 The motion is therefore granted, and the case is remanded to the Superior Court of 18 California, County of Marin. The motion hearing scheduled for February 2, 2023, is vacated. 19 20 || ITISSO ORDERED. 21 22 || Dated: January 26, 2023 VAA 23 RICHARD SEEBORG _ Chief United States District Judge 25 *6 ' Furthermore, Experian would not appear to be prejudiced by remand since it has settled its 27 claims with Plaintiffs and intends to seek dismissal. See Dkt. 15. 98 ORDER GRANTING MOTION TO REMAND . CASE No. 22-cv-07464-RS