Case1:10-cv-03855-NJV Document21 Filed10/01/10 Page1 of 4

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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EUREKA DIVISION
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MARK D. WUERFEL, No. C 10-03855 NJV
United States District Court

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Plaintiff, ORDER DISMISSING WITHOUT
For the Northern District of California

12 PREJUDICE PLAINTIFF’S MOTION TO

v. REMAND AND REQUEST FOR
13 RECOVERY OF ATTORNEYS FEES AND
RICK EUGENE LATHRUM, ROBIN RAE COSTS; DEFERRING RULING ON
14 LATHRUM AND DOES 1 THROUGH 20 DEFENDANTS’ MOTION TO DISMISS OR
FOR MORE DEFINITE STATEMENT AND
15 MOTION TO STRIKE; AND VACATING
Defendants. HEARINGS
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I. INTRODUCTION
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This case arises from a fire and resulting property damage that Plaintiff claims were caused by
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Defendant Eugene Rick Lathrum. Plaintiff, a California-licensed attorney proceeding pro se, filed
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suit against Rick Eugene Lathrum, Robin Rae Lathrum, and Does 1 through 20 (collectively referred
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to herein as “Defendants”) in Mendocino County Superior Court on July 12, 2010. Plaintiff claims
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that he filed suit on July 12, 2010 in order to avoid the running of the statute of limitations but he did
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not serve the complaint and summons on Defendants because he was continuing his investigation into
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the facts and circumstances underlying his claims and anticipated amending the original complaint.
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Nevertheless, Defendants became aware of Plaintiff’s lawsuit and removed it to this Court on August
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27, 2010 pursuant to 28 U.S.C. §§ 1332(a) and 1441(b). Both parties have consented to this Court’s
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jurisdiction pursuant to 28 U.S.C. § 636(c).
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1 II. REMAND IS IMPROPER PRIOR TO AMENDMENT

2 On September 24, 2010, Plaintiff filed a Motion to Remand alleging that this Court lacks
3 jurisdiction over this case because Plaintiff, who is a resident of the State of California, intends to
4 amend his complaint to assert claims against a defendant who is also a resident of the State of
5 California thereby destroying the requisite diversity among the parties. (Doc. Nos. 13-16.)
6 However, Plaintiff has neither filed an amended complaint nor sought leave to do so; his original
7 complaint remains the operative complaint in this case. That is, the only named defendants in this
8 case are the Lathrums, who are residents of the State of Arizona. Notice of Removal, ¶ 7, Doc. No. 1.
9 Although Plaintiff has sued several defendants (i.e., "Does 1 through 20") under fictitious names, the
10 citizenship of such defendants is disregarded when determining the propriety of removal. See 28
11 U.S.C. § 1441(a). Because Plaintiff is a resident of California and the only named defendants are
12 residents of Arizona, complete diversity exists and remand is improper at this time.
13 III. PLAINTIFF'S REQUEST FOR ATTORNEYS FEES IS PREMATURE
14 At the same time that he filed his Motion to Remand, Plaintiff filed a request for an award of
15 attorneys fees and costs. (Doc. No. 17.) Plaintiff argues that Defendants should be required to pay
16 his attorneys fees and costs incurred in connection with the filing and prosecution of his Motion to
17 Remand because Defendants failed to respond to his correspondence or otherwise contact him to
18 discuss his proposed amended complaint and/or the propriety of remanding the case to Mendocino
19 County Superior Court. As stated above, because Plaintiff has not filed an amended complaint
20 remand is improper at this time. Because Plaintiff's request for an award of fees and costs presumes
21 that his Motion to Remand has merit and the Court has determined that the Motion to Remand does
22 not have merit at this time, Plaintiff's related request for attorney's fees and costs is premature.
23 IV. DEFENDANTS' MOTIONS ARE PREMATURE
24 On September 19, 2010, Defendants Rick Eugene Lathrum and Robin Rae Lathrum ("the
25 Lathrums) filed a motion to dismiss several of Plaintiff's claims or in the alternative for a more
26 definite statement, as well as a motion to strike portions of Plaintiff's complaint. (Doc. No. 5.) A
27 federal court must satisfy itself of its jurisdiction over the subject matter before proceeding to the
28 merits of the case. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577, 583, 119 S.Ct. 1563, 143

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1 L.Ed.2d 760 (1999). "The requirement that jurisdiction be established as a threshold matter ... is
2 inflexible and without exception, for [j]urisdiction is power to declare the law, and without
3 jurisdiction the court cannot proceed at all in any cause." Id. (internal quotation marks and citations
4 omitted). In light of Plaintiff's stated intent to amend his complaint and the possibility that such
5 amendment might divest the Court of jurisdiction over this case or resolve the issues raised in
6 Defendants’ Motion to Dismiss or for More Definite Statement and Motion to Strike, the Court will
7 defer ruling on those motions until such time as the issues of the amendment of the complaint and
8 remand to state court are resolved.
9 V. CONCLUSION
10 In light of the foregoing, Plaintiff's Motion to Remand and Motion for Recovery of Attorney's
11 Fees and Costs are DENIED WITHOUT PREJUDICE. To the extent that Plaintiff desires to amend
12 the operative complaint, he shall do so no later than October 12, 2010. Upon the filing of his
13 amended complaint, Plaintiff may re-file and re-notice his Motion to Remand in accordance with the
14 applicable Federal Rules of Civil Procedure and Civil Local Rules.
15 The Court notes that 28 U.S.C. § 1447(e) provides it with the discretion to permit or deny the
16 post-removal amendment of pleadings to join a diversity-destroying defendant. See Newcombe v.
17 Adolf Coors Co., 157 F.3d 686, 691 (9th Cir. 1998); see also Greer v. Lockheed Martin, 2010 WL
18 3168408, *4 (N.D.Cal. 2010) (stating five factors that courts in this district generally consider when
19 determining under 28 U.S.C. § 1447(e) to permit joinder of a diversity-destroying defendant).
20 Defendants may re-notice their Motion to Dismiss or for More Definite Statement and Motion
21 to Strike, if necessary, upon resolution of Plaintiff's re-filed motion to remand.
22 The hearings that are currently scheduled for October 12, 2010 and November 9, 2010 are
23 hereby VACATED.
24 The case management conference currently scheduled for December 14, 2010 is
25 CONTINUED to Tuesday, December 21, 2010 at 2:00 p.m. at the Eureka Federal Courthouse.
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1 IT IS SO ORDERED.
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Dated: October 1, 2010 NANDOR J. VADAS
5 United States Magistrate Judge
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