State Farm Mutual Automobile Insurance Company v. Busch Doc.

Case 2:05-cv-02487-FCD-GGH Document 8 Filed 12/15/2005 Page 1 of 3

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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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12 STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
13 NO. CIV. S-05-2487 FCD
Plaintiff,
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v. ORDER
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JEFFREY E. BUSCH and DOES ONE
16 through TEN, inclusive,
17 Defendants.
_____________________________/
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JEFFREY E. BUSCH,
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Cross-Complainant,
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v.
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THE GLENS FALLS INSURANCE
22 COMPANY, ENCOMPASS INSURANCE
COMPANY (formerly known as
23 “CNA”), and ROES ONE through
TWENTY, inclusive,
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Cross-Defendants.
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The court has reviewed cross-defendants’ notice of removal
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to the United States District Court for the Eastern District of
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California under 28 U.S.C. § 1441(a) based on diversity

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 Case 2:05-cv-02487-FCD-GGH Document 8 Filed 12/15/2005 Page 2 of 3

1 jurisdiction.1 Section 1441(a) provides that “any civil action

2 brought in a State court of which the district courts of the
3 United States have original jurisdiction, may be removed by the
4 defendant or the defendants, to the district court of the United
5 States for the district and division embracing the place where
6 such action is pending.” Id. (emphasis added). The removal
7 statute is to be strictly construed against removal jurisdiction.
8 Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988). “Federal
9 jurisdiction must be rejected if there is any doubt as to the
10 right of removal in the first instance. Gaus v. Miles, Inc., 980
11 F.2d 564, 566 (9th Cir. 1992). The Ninth Circuit has not
12 addressed whether “third-party” defendants or cross-defendants
13 are “defendants” for the purposes of § 1441(a). However, “the
14 majority view is that the determination of who is a defendant is
15 determined by the original complaint, not subsequent third or
16 fourth party complaints.” Schmidt v. Ass’n of Apartment Owners
17 of Marco Polo Condominium, 780 F. Supp. 699, 702 (D. Haw. 1991).
18 The great weight of district court authority within this circuit
19 indicates that third party defendants lack a right to remove
20 actions to federal court under § 1441(a). See Ciolano v. Ryan,
21 2003 WL 21556959, at *3 (N.D. Cal. July 09, 2003) (collecting
22 cases). Therefore, the court finds that the cross-defendants do
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Counter-defendants assert that their notice of removal
is based upon 28 U.S.C. § 1441(b). However, this section applies
25 only to federal question jurisdiction or to actions brought where
none of the parties are citizens of the State in which the action
26 is brought. Id. Counter-defendants base their notice of removal
upon diversity jurisdiction, and therefore, the court interprets
27 their notice as brought under 28 U.S.C. § 1441(a), which allows
removal by the defendant or defendants on the basis of diversity
28 jurisdiction.

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1 not have a right to remove the case to federal court.

2 Accordingly, the court REMANDS this action back to the Superior
3 Court of California, County of Placer.
4 IT IS SO ORDERED.
5 DATED: December 14, 2005
6 /s/ Frank C. Damrell Jr.
FRANK C. DAMRELL, Jr.
7 UNITED STATES DISTRICT JUDGE
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