The plaintiff filed an action in California state court against various defendants after being diagnosed with malignant mesothelioma. Defendant O’Reilly Auto Enterprises removed to federal court after it was the only remaining defendant on the basis of diversity. The plaintiff filed a motion to remand and for attorneys’ fees. The court granted the plaintiff’s motion.
O’Reilly’s notice of removal was both substantively and procedurally improper. A complaint that is not initially removable due to non-diversity may become removable where diversity arises due to a plaintiff’s “voluntary action.” The court cited case law, stating: “Voluntary action exists where the plaintiff voluntarily amends his pleadings or where the plaintiff agrees to voluntarily dismissal or nonsuit of the nondiverse defendants…But where the dismissal of a diversity-defeating defendant occurs involuntarily, such as dismissal on the merits over the plaintiff’s opposition, that action does not become removable.” In this case, defendants SRI and E.T. Horn destroyed diversity and were never formally dismissed, and the court had granted both these defendants’ motions for summary judgment after the plaintiff opposed them. Further, although the plaintiff settled with SRI, there was no formal dismissal and a settlement was insufficient to confer removal jurisdiction without a dismissal.
The court also found that the notice of removal was procedurally improper because it failed to satisfy the rule of unanimity, which requires that all defendants join in removal. Finally, because “[n]o reasonable litigant in O’Reilly’s position could have concluded that federal court was the proper forum in which to litigate Plaintiff’s claims given the presence of two non-diverse defendants,” it awarded the plaintiff $4,200 in attorneys’ fees.