Casola v. Dexcom, Inc.

98 F.4th 947

Lauren CASOLA, an individual, Plaintiff-Appellee, v. DEXCOM, INC., Defendant-Appellant.

Brenda Bottiglier, an individual, Plaintiff-Appellee, v. Dexcom, Inc., Defendant-Appellant.

Helena Pfeifer, an individual, Plaintiff-Appellee, v. Dexcom, Inc., Defendant-Appellant.

No. 23-55403

No. 23-55435

No. 23-55437

United States Court of Appeals, Ninth Circuit

Argued and Submitted December 6, 2023 Pasadena, California

Filed April 10, 2024

Appeal from the United States District Court for the Southern District of California, Jinsook Ohta, District Judge, Presiding, D.C. Nos. 3:22-cv-01865-JO-MDD, 3:22-cv-01869-JO-MDD, 3:22-cv-01878-JO-BGS

Joshua A. Klarfeld (argued), Paul J. Cosgrove, and Georgia Hatzis, UB Greensfelder LLP, Cleveland, Ohio; Kevin W. Alexander, Renata O. Bloom, and Matthew Nugent, Gordon Rees Scully Mansukhani LLP, San Diego, California; for Defendant-Appellant.

Min J. Koo (argued), Tosi Law LLP, Atlanta, Georgia; Timothy M. Clark, Tosi Law LLP, Carlsbad, California; for Plaintiffs-Appellees.

Before: Consuelo M. Callahan, Ryan D. Nelson, and Bridget S. Bade, Circuit Judges.

OPINION

CALLAHAN, Circuit Judge:

In these three consolidated appeals, Defendant-Appellant Dexcom, Inc. challenges the district court's decision to remand each of the underlying actions back to California state court under the forum defendant rule. The forum defendant rule, contained in 28 U.S.C. § 1441(b)(2), prohibits removal based on diversity jurisdiction "if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." Id. (emphasis added). Violation of the forum defendant rule is considered a non-jurisdictional defect, which is waived if a plaintiff does not seek remand on that basis within 30 days of removal. Lively v. Wild Oats Mkts., Inc., 456 F.3d 933, 936, 942 (9th Cir. 2006); see 28 U.S.C. § 1447(c) ("A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal . . . .").

Dexcom, the lone defendant in each of the present actions and undisputedly a citizen of California, removed these cases to federal court based on diversity jurisdiction. See 28 U.S.C. § 1332(a), (c)(1). In its initial notices of removal, Dexcom informed the district court that the forum defendant rule did not bar removal because it had not yet been "joined and served" as a defendant. See 28 U.S.C. § 1441(b)(2).

In doing so, Dexcom was trying to effect what is known as a "snap removal"—filing its notices of removal before service of the summons and complaint. In fact, Dexcom was attempting an even snappier version of the typical snap removal. Dexcom was not just attempting removal pre-service but, as we will explain, also pre-filing of the underlying complaints in state court.¹

Like the district court, we conclude that Dexcom's "super snap removals" were ineffectual. These were attempts to remove cases that did not yet exist as civil actions pending in state court, and thus Dexcom's initial notices of removal were legal nullities that did not start the 30-day remand clock under § 1447(c). Accordingly, the district court had the power to grant the plaintiffs' eventual motions to remand based on a perceived violation of the forum defendant rule, even though the motions were brought 31 days after Dexcom's initial (ineffectual) notices of removal. Because the district court had the power under § 1447(c) to order remand based on the forum defendant rule, 28 U.S.C. § 1447(d) requires that we dismiss these appeals for lack of jurisdiction.

BACKGROUND

Commencement of the Actions

In late 2022, Plaintiffs-Appellees Lauren Casola, Brenda Bottiglier, and Helena Pfeifer (collectively, "Plaintiffs")— proceeding separately but through the same counsel—each brought similar product liability suits against Dexcom in the Superior Court of California, County of San Diego ("Superior Court").² Because the present appeals turn on the timing of various steps in the case initiation process, we lay them out in some detail.

On Wednesday, November 23, 2022 (the day before Thanksgiving), Casola electronically submitted her complaint to the Superior Court. As required by that court's local rules, she did so through an electronic filing service provider. See S.D. Super. Ct. Local Rule 2.1.4; Cal. Civ. Proc. Code § 1010.6(e) (authorizing trial courts to adopt local rules permitting electronic filing of documents).

The same day, Dexcom's counsel received notice of the complaint's submission through Courthouse News Service ("CNS"), which is "a national news organization that publishes daily reports for its subscribers about civil litigation, including the filing of new lawsuits." Courthouse News Serv. v. Planet, 947 F.3d 581, 585 (9th Cir. 2020) (internal quotation marks omitted). The CNS notification report listed the party names, the venue, a CNS-assigned case number ("T22-4576"), and a "Filing Date" of November 23, 2022, along with the names of plaintiff's counsel and a general summary of the claims asserted. The report also offered options to access the complaint itself.

On Monday, November 28, 2022—before the Superior Court had officially filed the complaint or issued a summons—Dexcom filed a notice of removal in the United States District Court for the Southern District of California.³ Dexcom attached to its notice of removal a copy of Casola's state court complaint obtained through CNS. The complaint's caption displayed no filing stamp endorsement, and the case number and judge assignment fields were blank. The notice of removal identified the case only by its CNS-assigned case number because, as Dexcom later advised the district court, the Superior Court case number "was not publicly available."

The next day, the Clerk of the Superior Court officially filed the complaint—endorsing it as "ELECTRONICALLY FILED" on November 29, 2022, at 3:31 PM—and issued a summons bearing the same endorsement. The following day, Wednesday, November 30—two days after Dexcom's notice of removal—Casola served a copy of the complaint and the summons on Dexcom through its agent. About one week later, on December 8, 2022, Dexcom filed a supplemental notice of removal in the district court, providing the official case number assigned by the Superior Court and attaching the endorsed version of the complaint.⁴

Motions to Remand

Dexcom's original notices of removal were filed in the district court on November 28, 2022. On December 29, 2022, Plaintiffs responded with substantively identical motions to remand their respective actions to state court. Importantly, Plaintiffs' remand motions came 31 days after the filing of Dexcom's initial notices of removal—cause for concern given § 1447(c)'s command that a motion to remand "on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of [a] notice of removal." Potentially realizing this timing predicament, Plaintiffs framed their remand motions as based on lack of "subject matter jurisdiction"—a defect which would warrant remand at any time before final judgment. See id. Plaintiffs argued that the district court lacked subject matter jurisdiction because Dexcom's notices of removal were "legally void" for having been filed before the Superior Court had processed the complaints. Plaintiffs also asserted that the forum defendant rule precluded Dexcom from removing the cases now that it had been joined and served as a defendant in each of the actions.

In January 2023, with these remand motions pending, the district court issued an order to show cause in each case. The court ordered Dexcom, "a California citizen, to show cause why the case[s] should not be remanded to state court pursuant to the forum defendant rule." As permitted by the orders, both sides responded. Plaintiffs again urged remand for lack of subject matter jurisdiction, while Dexcom both defended its pre-service removals as avoiding the forum defendant rule and challenged Plaintiffs' remand motions as untimely.

In March 2023, the district court granted Casola's remand motion. The district court soon thereafter granted Bottiglier's and Pfeifer's motions for the same reasons stated in Casola's remand order. In its remand orders, the district court held that the actions "must be remanded to state court because as a citizen of California [and therefore a forum defendant], Defendant cannot remove . . . on the grounds of diversity jurisdiction." The court recognized that, because the "forum defendant rule does not deprive [a] federal court of jurisdiction," a plaintiff waives its forum-defendant objection if not raised within 30 days of the notice of removal. See Lively, 456 F.3d at 942. However, the court rejected Dexcom's argument that Plaintiffs had waived their forum-defendant objections by filing their remand motions 31 days after the initial notices of removal because the court deemed those notices of removal "defective."

The district court reasoned that "[a] proper removal requires a complaint to have first been filed." The district court found that, despite Casola electronically submitting her complaint a few days before, the Superior Court "did not file [her] complaint until November 29, 2022, as evidenced by the time stamp of the Clerk of the Superior Court." Because November 29, 2022, was the date the state court action commenced and the date the complaint became the "initial pleading" in the lawsuit, 28 U.S.C. § 1446(b)(1), the court concluded that Dexcom's earlier November 28, 2022, notice of removal was a "defective removal notice" that did not "start the clock on the 30-day window." Accordingly, the district court remanded each action because the cases were removed by a forum defendant and Plaintiffs had not waived this defect.⁵

Dexcom timely appeals the remand orders,⁶ which—although not final judgments—"had the force of a final order given that [the...