Opinion
SACV 22-01716-CJC (KESx)
09-23-2022
XUAN GENG v. SHI CHE ET AL
PRESENT: HONORABLE CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE
CIVIL MINUTES - GENERAL
PROCEEDINGS: (IN CHAMBERS) ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE REMANDED
On September 19, 2022, Defendants Avioq, Inc., (“Avioq”) and Chamroen Chetty (“Chetty”) removed this action from the California Superior Court, County of Orange, invoking this Court's diversity jurisdiction. (See Dkt. 1.) Avioq and Chetty allege in their Notice of Removal that Plaintiff Xuan Geng has not, or has not properly, served Defendants Shi Che (“Shi”) and Shandong Oriental Ocean Group Co. Ltd. (“SOOG”) and that Defendant Zhiyuan Che (“Zhiyuan”) has defaulted in state court. (See id. ¶¶ 4-6.) Avioq and Chetty then state that “[b]ecause Zhiyuan has defaulted and Geng has not served Shi or SOOG, their consent to removal is not necessary. 28 U.S.C. § 1446(b)(2)(A).” However, Avioq and Chetty do not cite in their Notice to any evidence substantiating that Shi and SOOG were not properly served or that Zhiyuan has defaulted. Further, it is unclear that the need for consent for removal under § 1446(b)(2)(A) from Zhiyuan is obviated even if Zhiyuan in fact defaulted, as that statutory provision states: “When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.”
Accordingly, the Court ORDERS Avioq and Chetty to SHOW CAUSE in writing, not to exceed ten (10) pages in length inclusive of all parts, and no later than October 14, 2022, why this action should not be remanded to California Superior Court, with particular attention to (1) proof of lack of proper service on Shi or SOOG and of default by Zhiyuan, and (2) the legal basis to believe that Zhiyuan's purported default in state court either constitutes consent to removal or obviates the need for Zhiyuan's consent for removal pursuant to 28 U.S.C. § 1446.
While Plaintiff is not obligated to file a response, should Plaintiff wish to do so, Plaintiff is ORDERED to file said response in writing, not to exceed ten (10) pages in length inclusive of all parts, and no later than October 21, 2022.