HUNG HUYNH v. GERARD RICHARD WILLIAMS, III
Case No. 2:25-cv-07351-JC
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
October 2, 2025
JS-6
[DOCKET NO. 13]
I. SUMMARY
On October 31, 2024, Plaintiff Hung Huynh (“Plaintiff“), filed a Complaint against Defendant Gerard Richard Williams, III (“Defendant“), in Orange County Superior Case No. 30-2024-01436961-CU-PO-CJC (“State Action“). (Docket No. 1-5). On November 27, 2024, Plaintiff served the Summons and Complaint on Defendant. (Docket No. 1-7). On August 7, 2025, Defendant removed the case to federal court based on diversity jurisdiction, alleging that Plaintiff is a citizen of Vietnam and Defendant is a citizen of Missouri. (Docket No. 1 at 3). The matter was thus removed to the United States District Court for the Central District of California and was subsequently assigned to this Court as to whom the parties have been deemed to consent. (See Docket Nos. 1, 2, 6, 7).
Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds the Motion appropriate for decision without oral argument.
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For the reasons discussed below, the Motion is granted, except as to attorney‘s fees and costs, and the case is remanded to the Orange County Superior Court.2 In reaching this conclusion, the Court has considered every argument made by the parties and discusses the main contentions herein.
II. STANDARD OF REVIEW
Removal of a case from state court to federal court is governed by
To protect the jurisdiction of state courts, removal jurisdiction is strictly construed in favor of remand. See Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 698 (9th Cir. 2005); see also Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (“It is to be presumed that a cause lies outside the limited jurisdiction of the federal courts and the burden of establishing the contrary rests upon the party asserting jurisdiction.” (internal quotation marks and brackets
III. DISCUSSION
As indicated above, Plaintiff‘s Motion contends that remand is warranted due to (1) the untimeliness of Defendant‘s removal of the case to this Court (see Motion Memo at 3-5); and (2) the “forum defendant rule” set forth in
A. Removal Was Untimely
1. Pertinent Law
The Ninth Circuit has explained that there are three pathways for removal of an action from state court based on diversity jurisdiction. See Roth v. CHA Hollywood Med. Ctr., L.P., 720 F.3d 1121, 1124 (9th Cir. 2013). The first two pathways are contained in
The first pathway is set forth by Section 1446(b)(1) and states that “[t]he notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial
The third pathway is based on the interaction of Section 1446 with Section 1441. See Roth, 720 F.3d at 1125. Section 1441(a) states that “[e]xcept as otherwise expressly provided by Act of Congress, 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.”
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As noted above, Plaintiff filed his Complaint in Orange County Superior Court on October 31, 2024, and served Defendant on November 27, 2024. (Docket Nos. 1-5, 1-7). Five days later, on December 2, 2024, Plaintiff‘s then-counsel submitted a Request for Dismissal which apparently was erroneous and had not been authorized by Plaintiff. (Docket No. 1-8). After Plaintiff‘s counsel then advised the court of the erroneous filing, the clerk entered a Notice of Rejection of Electronic Filing at the direction of the court on December 16, 2024. (Docket No. 1-9). The Notice of Rejection stated: “Per the courtroom, rejected at the request of Olivia Maclay at Wilshire Law Firm,” which was Plaintiff‘s then-counsel. (Id.).
On December 27, 2024, Defendant filed his notice of appearance of counsel along with a “Motion for Order Directing the Clerk to Enter an Order Recognizing the Voluntary Dismissal of this Action with Prejudice.” (Docket No. 1-10). The motion argued that the Request for Dismissal submitted on Plaintiff‘s behalf on December 2, 2024 immediately resulted in the case‘s dismissal, leaving no discretion for the clerk or the court to reject it, and instead divesting the court of jurisdiction over the case and requiring the clerk to file an order recognizing that the action had been dismissed with prejudice on December 2. (See id. at 4-6). Plaintiff opposed the motion on the grounds that he had not authorized the Request for Dismissal and its submission was due to an error. (Docket No. 1-11). The trial court heard oral arguments on July 7, 2025, and issued its final ruling on July 8, 2025, denying Defendant‘s Motion to Enforce Dismissal upon finding that the Request for Dismissal had been “submitted due to a miscommunication between Plaintiff and his attorney” and “was properly withdrawn by the Court at the request of Plaintiff‘s counsel,” as Plaintiff‘s “intent was not to dismiss the case,” and so the “dismissal was never entered.” (Docket No. 1-14).
On July 10, 2025, Defendant filed a Motion for Reconsideration. (Docket No. 1-16). On July 28, 2025, Defendant filed a Petition for Writ of Mandate,
3. Analysis
There is no dispute here that the basis for Defendant‘s removal of the case, diversity jurisdiction, was clear from the Complaint that was served on Defendant on November 27, 2024 (Docket No. 1-7), and thus
In particular, contrary to Defendant‘s account, the State Action was not suddenly “un-dismissed” or rendered “active” on July 8, 2025 (see Opposition at 1, 6), because it had never been dismissed, closed, or inactive prior to that. California law provides that a plaintiff may dismiss his complaint upon written request to the clerk, “filed with papers in the case,” at any time before trial.
Furthermore, although “[n]either the clerk nor the trial court has any discretion” regarding a plaintiff‘s request for dismissal, Law Offs. of Andrew L. Ellis, 178 Cal. App. 4th at 876, the request here was not rejected simply at the discretion of the clerk or trial court. It was instead rejected at the request of Plaintiff‘s counsel because it had been submitted in error, and it was never Plaintiff‘s intent to dismiss the matter. (See Docket No. 1-9 (Notice of Removal Ex. 9)). As it was Plaintiff‘s “absolute right to dismiss” the action by filing such a
The state court obviously recognized this by rejecting the filing on December 16, 2024. (See Docket No. 1-9; Reply Ex. 1). By that date, at the latest, it should have been clear to Defendant that the matter was not dismissed and was instead an open, pending state court action that could be removed to federal court. Defendant fails to identify any reasonable basis for him to have believed otherwise. Yet, Defendant delayed for nearly eight months after that before removing the case on August 7, 2025. (See Docket No. 1). Though he now contends otherwise, Defendant at that time did not proceed as though he actually believed the case had been dismissed and rendered inactive by the Request for Dismissal. Rather, as indicated above, Defendant actively pursued the case‘s dismissal by moving for an order requiring the clerk to enter dismissal. Indeed, even after the Superior Court denied his motion on July 8, 2025, and confirmed what had already been apparent - that “dismissal was never entered” in the case, nor should it have been (see Docket No. 1-14 at 2) - Defendant continued to press the matter in the state courts (see Docket No. 1-16; Motion Exs. K-L).
Such actions reflect, at most, that Defendant believed the case should have been dismissed and that he was entitled to such dismissal, but it was Defendant‘s choice to litigate that procedural issue in the state courts rather than timely to remove the action to federal court. As there is no legal basis to toll the thirty-day removal period under
B. Removal Was Also Improper Due to the Forum Defendant Rule
1. Pertinent Law
Under the “forum defendant rule,” an action that is otherwise removable to federal court solely on the basis of diversity jurisdiction “may not be removed 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.”
“To demonstrate citizenship for diversity purposes a party must (a) be a citizen of the United States, and (b) be domiciled in a state of the United States.” Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986) (emphasis added).
A person‘s “domicile” is the “location where he or she has established a ‘fixed habitation or abode in a particular place, and [intends] to remain there permanently or indefinitely.‘” Id. at 749-50 (quoting Owens v. Huntling, 115 F.2d 160, 162 (9th Cir. 1940) (alteration in original)). “Intention to remain ‘indefinitely’
Residence, which entails only physical presence, is not equivalent to domicile, as “[a] person residing in a given state is not necessarily domiciled there, and thus is not necessarily a citizen of that state.” Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (citing Weible v. United States, 244 F.2d 158, 163 (9th Cir. 1957) (“Residence is physical, whereas domicile is generally a compound of physical presence plus an intention to make a certain definite place one‘s permanent abode, though, to be sure, domicile often hangs on the slender thread of intent alone, as for instance where one is a wanderer over the earth. Residence is not an immutable condition of domicile.“)). Nonetheless, “numerous courts treat a person‘s residence as prima facie evidence of the person‘s domicile,” though the Ninth Circuit has not “yet adopted this presumption.” Mondragon v. Cap. One Auto Fin., 736 F.3d 880, 885-86 (9th Cir. 2013) (citing Anderson v. Watts, 138 U.S. 694, 706 (1891); Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 571 (5th Cir. 2011) (per curiam); 13E Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3612 & n.28 (3d ed. 2013)). “At minimum, a person‘s residence constitutes some evidence of domicile,” Adams v. W. Marine Prods., Inc., 958 F.3d 1216, 1221 (9th Cir. 2020) (citing Mondragon, 736 F.3d at 886) (emphasis in original), though a number of other factors are also
“[T]he existence of domicile for purposes of diversity is determined as of the time the lawsuit is filed.” Id. It is “evaluated in terms of ‘objective facts,‘” and “statements of intent are entitled to little weight when in conflict with facts.” Id. (quoting Freeman v. Nw. Acceptance Corp., 754 F.2d 553, 556 (5th Cir. 1985)). “[T]he actual fact of residence and a real intention of remaining there, as disclosed by [a party‘s] entire course of conduct, are the controlling factors in ascertaining his domicile.” Freeman, 754 F.2d at 555-56. The party asserting diversity jurisdiction bears the burden of proof. Kanter, 265 F.3d at 857-58; Lew, 797 F.2d at 749.
2. Pertinent Facts and Contentions
As noted above, Defendant removed this case on the basis of diversity jurisdiction, alleging that Plaintiff is a citizen of Vietnam and Defendant is a citizen of Missouri. (See Docket No. 1 at 3). Defendant claimed specifically that he is domiciled at 1110 N. 19th Avenue, in Ozark, Missouri. (Docket No. 1-2 at 1). Plaintiff disputes this, contending that Defendant is instead a citizen of California, where Defendant presently resides, and thus removal was improper under the forum defendant rule. (See Motion Memo at 5-12). As support, Plaintiff has submitted state court filings from California and Texas between December 2024 and February 2025, in which Defendant alleged that he is a citizen of California and a California resident. (See Motion Ex. A at 2, Ex. B at 2, Ex. C at 2, Ex. D at 4).
Defendant does not dispute that he presently resides in California and has lived here for about fifteen years. Since about 2021, Defendant and his wife have
Yet, notwithstanding these ties established over the last nearly thirty years in California and Texas, according to Defendant, “none of those places ever truly felt like home.” (Def. Decl. ¶ 13). Defendant avers that his “permanent home and true intent have always remained in Ozark, Missouri.” (Def. Decl. ¶ 18).
Defendant was “born and raised” in Southwestern Missouri and alleges strong family, spiritual, and emotional connections to that area, though he apparently has not lived there since completing his master‘s degree at the University of Missouri, Rolla, almost thirty years ago. (See Def. Decl. ¶¶ 2-7, 13-14). The home Defendant claims as his “domicile,” at 1110 North 19th Avenue, in Ozark, Missouri (see Docket No. 1-2 at 1), is his parents’ current home that Defendant expects to inherit when they pass away (Def. Decl. ¶ 19). It is not the Missouri home Defendant grew up in, but he asserts that it “resembles all the memories [Defendant] carr[ries] in [his] heart from childhood.” (Def. Decl. ¶ 12). His parents moved there in 2012 because they wished “to create a new home . . . so the family could live together in the same place permanently.” (Def. Decl. ¶ 10).
Defendant and his wife assertedly share the decision to move there, and they have stored many of their “valuable personal effects” in his parents’ Ozark home, including their “favorite furniture,” “precious wedding clothes,” and “valuable household goods that [they] received as wedding gifts“; “[m]any photos of [Defendant‘s] seven children“; Defendant‘s “precious U.S. stamp collection“; his “collection of valuable books that [he] saved and intend[s] to read again when [he] retire[s]“; and his “treasured family heirlooms and keepsakes” such as “numerous childhood, high school, college, graduation, and wedding photos, along with [his] college diplomas, technological achievements, and awards.” (Def. Decl. ¶¶ 17-19). Defendant additionally states that his “plan is to transform the small town of Ozark, Missouri - home to just 24,000 people - into a technologically advanced haven, a place of opportunity built on love, community, and the values [Defendant‘s] parents and [he] hold so dear.” (Def. Decl. ¶ 20). Defendant also “aspire[s] to one day serve as an adjunct professor at the University of Missouri, where [he] earned [his] master‘s degree, sharing knowledge with the next generation through teaching and writing.” (Def. Decl. ¶ 23).
3. Analysis
Defendant fails to demonstrate that he is a citizen of Missouri rather than California, as he has offered little other than vague assertions of his emotional connection to the Ozark region and his desire to move there some day in the future. Yet, “[t]here is a difference between intention and desire.” Hawes, 598 F.2d at 702; see id. at 702-03 (despite that plaintiffs did not desire to leave Puerto Rico, and their eldest daughter remained there as did their furniture, they clearly intended
Such facts fall far short of demonstrating the requisite intention to relocate. See, e.g., Hossein v. Cantor, 2024 WL 866534, at *2 (C.D. Cal. Feb. 29, 2024) (“Cantor‘s declaration establishes only a floating intention to return at some future period to New Jersey; Cantor does not offer any evidence of a genuine plan to relocate away from California at a definite time. Furthermore, Cantor‘s statements of intent conflict with the objective facts in this case, which show that he works, lives, and pays taxes in California and has a California driver‘s license.” (emphasis in original)). Indeed, the facts confirm that Defendant intends to remain indefinitely - albeit not permanently - at his present home with his wife in
As such, Defendant is a citizen of California, where this action was brought, and removal was improper under the forum defendant rule. See
C. An Award of Attorney‘s Fees and Costs Is Not Warranted
“An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.”
Plaintiff argues that the Court should award attorney‘s fees and costs here because Defendant‘s removal was “plainly untimely” and was also “clearly improper under the Forum Defendant Rule, which Defendant and his counsel attempted to avoid my falsely claiming that Defendant is a citizen of Missouri.” (Motion Memo at 13). Defendant contends that if the Court orders remand, an
Upon review, though Defendant‘s positions on timeliness and domicile certainly lack merit - and, indeed, strain credulity - the Court cannot find that they are clearly foreclosed by the relevant case law or are otherwise objectively unreasonable. Plaintiff‘s request for attorney‘s fees and costs is therefore denied.
IV. ORDERS
IT THEREFORE ORDERED that (1) Plaintiff‘s Request and Supplemental Request for Judicial Notice are granted; (2) Plaintiff‘s Motion is granted, except as to attorney‘s fees and costs; (3) this action is remanded to the Orange County Superior Court; and (4) the Clerk shall send a copy of this Order to the Orange County Superior Court.
IT IS SO ORDERED.
DATED: October 2, 2025
/s/
Honorable Jacqueline Chooljian
UNITED STATES MAGISTRATE JUDGE