Bonner v. Fuji Photo Film

• Decision Date: 13 November 2006
• Docket Number: No. C 06-04374 CRB.,C 06-04374 CRB.
• Citation: 461 F.Supp.2d 1112
• Parties: Dorsi BONNER, Plaintiff, v. FUJI PHOTO FILM, et al., Defendants.
• Court: U.S. District Court — Northern District of California

461 F.Supp.2d 1112

Dorsi BONNER, Plaintiff, v. FUJI PHOTO FILM, et al., Defendants.

No. C 06-04374 CRB.

United States District Court, N.D. California.

November 13, 2006.

COPYRIGHT MATERIAL OMITTED

Charles A. Bonner, Law Offices of Charles A. Bonner, Sausalito, CA, for Plaintiff.

Ellen M. Bender, Pachulski Stang Ziehl Young Jones & Weintraub LLP, Susan E. Seager, Davis Wright Tremaine LLP, Los Angeles, CA, Stephen Michael Rummage, Davis Wright Tremaine LLP, Seattle, WA, Surjit P. Soni, Mark Leon Sutton, The Soni Law Firm, Pasadena, CA, for Defendants.

MEMORANDUM AND ORDER

BREYER, District Judge.

Now pending before the Court are (1) Plaintiff's Motion to Remand and (2) Plaintiffs Motion to Join Additional Defendants. For the reasons set forth below, Plaintiff's motions are DENIED.

BACKGROUND

Dorsi Bonner claims that her picture has been misappropriated and used on packaging for disposable cameras. She does not know exactly how her likeness made its way onto the cameras, but she wants someone to pay for it — to the tune of some undetermined amount, but not less than $75,000. She asserts various causes of action under California law for the wrong she has suffered, among them invasion of privacy, appropriation of likeness, intentional infliction of emotional distress, negligence, unfair business practices, and the violation of several state statutes.

Bonner originally filed suit on January 13, 2006, in Alameda County Superior Court. The only defendant she named was Fuji Photo Film U.S.A., Inc. ("Fuji"), the manufacturer of the disposable cameras. Compl. ¶ 2. In addition, she named numerous "Doe" defendants, who she alleges were "responsible in some manner" for the injuries she suffered. Id. ¶ 3.

Fuji then turned around and filed a third-party complaint against three other parties, alleging that these parties were liable for any damage that Fuji may have caused to Bonner. The third-party defendants were Edward Menuez ("Menuez"), Getty Images ("Getty"), and LAM Design Associates ("LAM"). Menuez is the photographer who took Bonner's picture in 1993. Getty is a business entity that purchased the rights to Bonner's picture from Menuez. And LAM is a design firm that purchased a license for the picture from Getty and designed the packaging for the disposable cameras on which Bonner's likeness appeared. All of these third-party defendants, like Fuji, are New York citizens.

Everyone agrees that not later than June 6, 2006, Bonner had placed each of the other parties in the case — Fuji, Menuez, Getty, and LAM — on notice that the case was subject to removal to federal court. Bonner's complaint clearly establishes diversity of citizenship, at least as to the named plaintiff and the named defendant. See id. ¶ 1 (alleging Bonner's California citizenship); id. ¶ 2 (alleging Fuji's New York citizenship). And although the four corners of the complaint do not establish that the amount in controversy exceeds $75,000, all of the parties have explicitly conceded that they became aware, in the course of their negotiations and conversations, that this jurisdictional requirement was met, too. See Decl. of Stephen L. Rummage ¶ 2 ("On June 1, 2006, I spoke by telephone with plaintiff's counsel, Charles A. Bonner.... My conversation with Mr. Bonner, combined with the face of the Complaint ... left absolutely no doubt that the plaintiff sought more than $75,000 in this action."). Thus, every party in the case has indicated that it perceived the basis for federal jurisdiction prior to June 6, 2006, when the final third-party defendant (Menuez) confirmed service of process as to Fuji's third-party complaint.

Upon seeing Fuji's attempt to pass liability along to these third-party defendants, however, Bonner decided to add them as direct defendants in her own lawsuit. She served a copy of her complaint on Getty on June 20, 2006, naming that entity as "Doe 2." She served a copy of her complaint on LAM on July 13, 2006, naming that entity as "Doe 1." The parties also indicate in their filings, and they represented at oral argument, that Bonner served a copy of her complaint on Menuez as "Doe 3." The record does not reveal when she actually served Menuez, but that fact is immaterial for purposes of the pending motions. All of the parties agree that, under California law, Bonner's service on these "Doe" defendants had the effect of establishing a direct cause of action against them, thereby incorporating them into Bonner's lawsuit as actual defendants, and not merely third-party defendants.

On July 17, 2006, Getty and LAM removed the case to this Court on the basis of diversity jurisdiction. In response, Bonner filed a motion to remand, arguing that removal was untimely. Bonner also filed a motion to join two additional parties. This second motion, if granted, would also require a remand, since both of the parties that Bonner seeks to add as defendants are alleged to be California citizens whose presence would destroy diversity.

DISCUSSION

I. Motion to Remand

The federal removal statute provides that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). In addition, federal law establishes a thirty-day window for the removal of cases to federal court on the basis of diversity jurisdiction. Id. § 1332(b). The thirty-day period commences at different times, depending on the nature of the case. In a case where the complaint clearly indicates that the matter is removable, the clock starts running upon service of the complaint. In a case where the complaint does not clearly indicate the basis for removal, the clock starts running when the defendant receives a "motion, order, or other paper" putting them on notice that the case is removable. Id.; see also Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 692 (9th Cir.2005). A district court must remand a case removed in an untimely fashion. See, e.g., Cantrell v. Great Republic Ins. Co., 873 F.2d 1249, 1256 (9th Cir. 1989).

Here, all parties agree that Getty and LAM filed their notice of removal on July 17, 2006. The disputed issue is whether their thirty-day removal window expired prior to that date. In other words, did the thirty-day clock start ticking prior to June 17, 2006? If so, removal was untimely, and remand is required. If not, removal was timely, and this Court retains jurisdiction. The timeliness of removal in this case hinges on two distinct issues of law.

A. Removal by Third-Party Defendants

The first issue is whether Getty and LAM could have removed the case to federal court while they were third-party defendants in state court. If so, then Getty and LAM would have been able to remove the case when Fuji served them as third-party defendants in early June, and their removal on July 17, 2006, would be untimely. If not, then Getty and LAM would not have been able to remove the case until Bonner substituted them for some of the "Doe" defendants on June 20, 2006, and July 13, 2006, respectively, and their removal would be timely.

It is an interesting and open question of law whether third-party defendants may remove a complaint against them into federal court.¹ That issue, however, is inapposite here. There can be no dispute that neither Getty, nor LAM, nor Menuez could have removed Fuji's complaint against them to federal court because there was no basis for federal jurisdiction. All of these parties are citizens of New York. Thus, even assuming the authority of third-party defendants to remove cases to federal court, no such authority existed in this case because there was no basis for federal jurisdiction as to the claims in which Getty, LAM; and Menuez were involved. This Court is aware of no authority, and the parties have offered none, to support the proposition that third-party defendants may remove a case to federal court on the basis that there would be jurisdiction if the plaintiff had established direct claims against them. Accordingly, Getty and LAM gained power to remove the case to federal court, if at all, only when Bonner established a direct cause of action against them on June 20, 2006, and on July 13, 2006, respectively.

B. Removal by Later-Served Defendants

The next issue is whether Getty and LAM had power to remove the case as subsequently named defendants. It is clear that removal would have been improper if the first-named defendant, Fuji, had attempted to remove the case on July 17, 2006, because Fuji was both identified as a defendant and put on notice of the basis for federal jurisdiction more than thirty days prior to removal. Getty and LAM contend, however, that the expiration of Fuji's thirty-day clock did not render their removal untimely. The case thus squarely poses an unsettled question of law: may a later-served defendant remove a case even though the thirty-day removal period has already expired as to the first-served defendant? In other words, does the thirty-day period begin to run as to all defendants when it begins to run as to any of them (the "first-served rule"), or does each defendant have its own thirty-day clock (the "last-served rule")?

The Ninth Circuit has not decided a case squarely on point. See United Computer Sys. v. At & T Corp., 298 F.3d 756, 763 n. 4 (9th Cir.2002) (noting a split of authority on the issue but "express[ing] no opinion today on the propriety of either rule"). The circuit courts are divided on the issue. Compare Brown v. Demco, Inc., 792 F.2d 478, 481-82 (5th Cir.1986) (applying the first-served rule), with Marano Enters. of Kan. v. Z-Teca Rests., L.P., 254 F.3d 753, 756-57 (8th Cir.2001) (applying the last-served rule); and Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 & n. 3 (6th Cir.1999) (applying the last-served rule);...