IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ELLEN ROSENBLUM, the Attorney

General for the State of

Oregon; STATE OF OREGON, by

and through Ellen Rosenblum,

the Attorney General for the

State of Oregon, the Oregon

Health Authority, and the

Oregon Department of Human

Services; and the OREGON

HEALTH INSURANCE EXCHANGE

CORPORATION, dba Cover

Oregon, an Oregon public

corporation,

Plaintiffs,

v.

ORACLE AMERICA, INC., a

Delaware corporation; STEPHEN

BARTOLO, an individual;

THOMAS BUDNAR, an individual;

KEVIN CURRY, an individual;

SAFRA CATZ, an individual;

BRIAN KIM, an individual;

RAVI PURI, an individual; and

MYTHICS, INC., a Virginia

corporation,

Defendants.

3:14-CV-01532-BR

 

OPINION AND ORDER 

1 - OPINION AND ORDER

Case 3:14-cv-01532-BR Document 39 Filed 11/25/14 Page 1 of 20
DAVID B. MARKOWITZ 

PETER H. GLADE

LISA A. KANER

DALLAS S. DELUCA

HARRY B. WILSON

Markowitz Herbold PC

Suite 3000 Pacwest Center

1211 S.W. Fifth Avenue

Portland, OR 97204-3730

(503) 295-308 

Attorneys for Plaintiffs

BRENNA K. LEGAARD 

JEFFERY S. EDEN

Schwabe, Williamson & Wyatt, P.C.

1211 S.W. Fifth Avenue, Suite 1900

Portland, OR 97204

(503) 222-9981

KAREN JOHNSON-MCKEWAN

ROBERT S. SHWARTS

ERIN M. CONNELL

Orrick, Herrington & Sutcliffe LLP

The Orrick Building

405 Howard Street

San Francisco, CA 94105

(415) 773-5700

DORIAN E. DALEY

DEBORAH K. MILLER

PEGGY E. BRUGGMAN

Oracle Corporation

Legal Department

500 Redwood Shores, CA 94065

(650) 506-9534

Attorneys for Defendants Oracle America, Inc.; Stephen

Bartolo; Thomas Budnar; Kevin Curry; Safra Catz; and

Brian Kim

DAYNA E. UNDERHILL

Holland & Knight LLP

2300 U.S. Bancorp Tower

111 S.W. Fifth Avenue

Portland, OR 97204

(503) 243-2300

2 - OPINION AND ORDER

Case 3:14-cv-01532-BR Document 39 Filed 11/25/14 Page 2 of 20
TIMOTHY D. BELEVETZ

Holland & Knight LLP

1600 Tysons Boulevard

Suite 700

Tysons Corner, VA 22102

(703) 720-8088 

Attorneys for Mythics, Inc.

BROWN, Judge.

This matter comes before the Court on the Motion (#25) to

Remand or in the Alternative to Change Venue of Oregon Attorney

General Ellen Rosenblum, the State of Oregon, and Oregon Health

Insurance Exchange dba Cover Oregon (Oregon Plaintiffs) and

Defendant Oracle America, Inc.’s Motion (#34) to Consolidate. 

For the reasons that follow, the Court DENIES as moot Oracle’s

Motion to Consolidate, GRANTS the Oregon Plaintiffs’ Motion to

Remand, and REMANDS this matter to Marion County Circuit Court.

BACKGROUND

The following facts are taken from the Complaint and the

materials filed in connection with Oregon Plaintiffs’ Motion to

Remand.

In 2007-2008 the Oregon Department of Human Services (DHS)

began a project to modernize its technology systems (the

Modernization Project). To identify potential technology vendors

to implement the Modernization Project, DHS issued a Request for

Identification (RFI) in January 2009.

3 - OPINION AND ORDER

Case 3:14-cv-01532-BR Document 39 Filed 11/25/14 Page 3 of 20
In February 2009 Oracle America, Inc., submitted a response

to the RFI.

At some point in 2009 the Oregon Legislature created the

Oregon Health Authority (OHA) as a division of DHS.

On March 23, 2010, Congress enacted the Patient Protection

and Affordable Care Act (ACA), Public Law No. 111–148, 124 Stat.

119 (2010), and thereby established legal foundations for states

either to create health-insurance exchanges (HIX) or to use an

HIX developed by the federal government.

In October 2010 the United States Department of Health and

Human Services (HHS) announced it would offer Early Innovator

grants to states to design and to implement the information

technology infrastructure needed to operate the HIX required by

the ACA. The State of Oregon determined an Early Innovator Grant

would provide it with the opportunity to combine the

Modernization Project with a project to create an HIX for the

State of Oregon.

In February 2011 HHS awarded Oregon an Early Innovator Grant

to implement an HIX. Oregon then began seeking a company to

provide both the Modernization Project and an HIX.

Throughout 2010 and 2011 OHA employees attended numerous

presentations and demonstrations by Oracle America, Inc., related

to Oracle’s ability to provide the Modernization Project and the

HIX. The State of Oregon through DHS/OHA subsequently decided to

4 - OPINION AND ORDER

Case 3:14-cv-01532-BR Document 39 Filed 11/25/14 Page 4 of 20
use Oracle to complete the Modernization Project and the HIX (the

Oracle Solution).

The State of Oregon did not contract with Oracle directly. 

Instead the State contracted with Mythics, Inc., a corporation

that works with Oracle to distribute and to sell Oracle products

and to provide consulting on the implementation and integration

of Oracle’s products.

On June 30, 2011, the State of Oregon entered into an

agreement with Mythics and executed the Mythics License and

Services Agreement (MLSA). Oracle did not sign the MLSA, but it

was named as a third-party beneficiary of the MLSA. 

The MLSA did not provide for the actual purchase of Oracle

products and services, but instead provided a contractual

framework to govern the purchase of Oracle products and services. 

Actual purchases were made through a series of purchase orders

submitted pursuant to the MLSA. The parties refer to the MLSA,

the purchase orders, and the ordering documents submitted

pursuant to the MLSA collectively as Mythics-ORA Contracts.

In June 2011 the Oregon Legislature passed legislation

creating the Oregon Health Insurance Exchange Corporation (Cover

Oregon)1 as a public corporation and an independent unit of the

State. Oregon Revised Statute § 741.002(1)(a) provides Cover

1

 On October 1, 2012, the Oregon Health Insurance Exchange

Corporation adopted the name Cover Oregon.

5 - OPINION AND ORDER

Case 3:14-cv-01532-BR Document 39 Filed 11/25/14 Page 5 of 20
Oregon shall "[a]dminister a health insurance exchange in

accordance with federal law to make qualified health plans

available to individuals and groups throughout this state." 

Also on June 30, 2011, DHS/OHA executed a Statement of Work

that provided Mythics and Oracle would "assist" DRS and ORA with

the “installation, implementation, configuration, and

customization of the Oracle Policy Automation 10.2 components to

support benefit eligibility processing and full determination for

various state programs” and the HIX. 

In August 2011 DHS and OHA executed a purchase order with

Oracle for the purchase of licenses for the Oracle software that

comprised the Oracle Solution, the hardware on which to run the

software, and consulting services to begin planning and

implementing the Oracle Solution.

Between June 30, 2011, and July 11, 2013, the State of

Oregon and Mythics executed 20 purchase orders under the MLSA for

the purchase of Oracle hardware, software, and services.

In November 2011 DHS and OHA entered into the Oracle License

Service Agreement (OHA OLSA) with Oracle. Like the MLSA, the OHA

OLSA did not provide for the actual purchase of Oracle products

and services but instead provided a contractual framework

governing the purchase of Oracle products and services. Actual

purchases were made through a series of purchase orders submitted

pursuant to the OHA OLSA (the parties refer to the OLSA, related

6 - OPINION AND ORDER

Case 3:14-cv-01532-BR Document 39 Filed 11/25/14 Page 6 of 20
purchase orders, and ordering documents as the "Oracle-OHA

Contracts").

Between November 30, 2011, and May 29, 2014, DHS and OHA

executed 23 purchase orders under the OHA OLSA. 

In December 2012 OHA began to transition the HIX-IT Project

to Cover Oregon.

 As noted, Cover Oregon was not a party to the MLSA or the

Oracle-OHA Agreements. On March 14, 2013, therefore, Cover

Oregon executed an Oracle License and Services Agreement (Cover

Oregon OLSA) with Oracle. Like the MLSA and the OHA OLSA, the

Cover Oregon OLSA did not provide for the purchase of Oracle

products and services but instead provided a contractual

framework governing the actual purchase of Oracle products and

services. Specifically, purchases were made through a series of

Oracle ordering documents and Cover Oregon purchase orders

submitted pursuant to the Cover Oregon OLSA (collectively the

Cover Oregon OLSA and the ordering documents, and the purchase

orders submitted pursuant to it shall be referred to as the

Oracle-Cover Oregon Contracts). 

In order for Oregonians to obtain insurance for 2014 as

required by the ACA, Cover Oregon established the goal of

launching the HIX by October 1, 2013.

The HIX, however, was not ready to launch by October 1,

2013. Throughout 2013 and into 2014 Oracle and Cover Oregon

7 - OPINION AND ORDER

Case 3:14-cv-01532-BR Document 39 Filed 11/25/14 Page 7 of 20
worked to make the Oregon HIX useable and effective. Oregon

Plaintiffs allege in their Complaint that “[a]s a result of

Oracle's failure to deliver a fully automated Oracle Solution to

Cover Oregon, the Oregon Health Authority, in coordination with

Cover Oregon, is working to transition to the federal website.”

On August 8, 2014, Oracle filed an action in this Court

against Cover Oregon, 3:14-CV-1279-BR, (the Federal Action)

asserting claims for breach of contract and quantum meruit in

which Oracle alleged Cover Oregon has not paid for all of the

services that Oracle rendered, “continue[s] to use Oracle’s work

product[,] and . . . has transferred some or all of that work

product to others in violation of the parties’ written

agreements.” Oracle based the Court’s jurisdiction in the

Federal Action on diversity.

On August 22, 2014, Oregon Attorney General Ellen Rosenblum,

the State of Oregon, and Cover Oregon filed an action in Marion

County Circuit Court (the State Action) against Oracle, Mythics,

and six Oracle employees2

 alleging claims for fraud; breach of

contract; breach of the Oregon False Claims Act (OFCA), Oregon

Revised Statute § 180.750, et seq.; and violations of Oregon

Racketeer Influenced and Corrupt Organizations Act (ORICO),

Oregon Revised Statute § 166.715, et seq.

2

 The Oracle employees are Stephen Bartolo, Thomas Budnar,

Kevin Curry, Safra Catz, Brian Kim, and Ravi Puri

8 - OPINION AND ORDER

Case 3:14-cv-01532-BR Document 39 Filed 11/25/14 Page 8 of 20
Also on August 22, 2014, Cover Oregon filed in the Federal

Action a Motion to Dismiss for Failure to State a Claim and

Failure to Join Necessary and Indispensable Party. Specifically,

Cover Oregon asserted this Court must dismiss the Federal Action

because Oracle failed to sue the State of Oregon, a necessary and

indispensable party.

On September 8, 2014, Oracle filed in the Federal Action an

Amended Complaint against Cover Oregon and the State of Oregon

asserting claims for copyright infringement (against Cover Oregon

and the State of Oregon); breach of contract (against Cover

Oregon); breach of the implied covenant of good faith and fair

dealing (against Cover Oregon); and quantum meruit (against Cover

Oregon and the State of Oregon). 

On September 18, 2014, this Court denied Cover Oregon’s

Motion to Dismiss filed in the Federal Action as moot and

directed Cover Oregon and/or the State of Oregon to file any

motions against the Amended Corrected Complaint no later than

October 2, 2014.

On September 25, 2014, Oracle and Catz removed the State

Action to this Court, 3:14-CV-1532-BR, on the grounds that

28 U.S.C. § 1454(a) provides that a civil action

is removable if “any party asserts a claim for

relief arising under any Act of Congress relating

to patents . . . or copyrights.” 28 U.S.C. 

§ 1454(a). Here, Oracle filed its copyright claim

in federal court [in the Federal Action] because

federal court has exclusive jurisdiction over

Oracle’s federal copyright claim, 28 U.S.C. 

9 - OPINION AND ORDER

Case 3:14-cv-01532-BR Document 39 Filed 11/25/14 Page 9 of 20
§ 1338, and it could not file such a claim in the

state court proceeding. Accordingly, Oracle, a

party to the state court proceeding, has asserted

a claim for relief [in the Federal Action] arising

under the federal copyright statute. Thus, this

Court has jurisdiction over the claims in the

Complaint [in the State Action] pursuant to

Section 1454(a).

This Court also has supplemental jurisdiction

under 28 U.S.C. § 1367(a) over Plaintiffs’ claims

asserted in the [State Action] Complaint because

those claims are “so related to claims in the

[Federal] [A]ction within such original

jurisdiction that they form part of the same case

or controversy.” 28 U.S.C. § 1367(a).

Notice of Removal, 3:14-CV-1532-BR, (#1) at ¶¶ 6-7. In short,

Oracle and Catz removed on the ground that this Court has

jurisdiction over the State Action because Oracle asserted

copyright claims and state-law claims in the Federal Action and

the claims in the State Action are related to the claims in the

separate Federal Action.

On October 2, 2014, in the Federal Action the State of

Oregon filed a Motion to Dismiss, Cover Oregon filed a Motion to

Dismiss, and the State of Oregon and Cover Oregon filed a Joint

Motion to Dismiss.

Also on October 2, 2014, the Court issued an Order in the

State Action in which it directed the Oregon Plaintiffs to file

any motion to remand no later than October 16, 2014. 

On October 16, 2014, the Oregon Plaintiffs filed a Motion to

Remand the State Action.

The Court set oral argument on November 21, 2014, as to the

10 - OPINION AND ORDER

Case 3:14-cv-01532-BR Document 39 Filed 11/25/14 Page 10 of 20
Oregon Plaintiffs’ Motion to Remand filed in the State Action

that Defendants removed to this Court and the various Motions to

Dismiss filed in the Federal Action. 

On November 10, 2014, the Court issued an Order advising the

parties that it had reviewed the Motions to Dismiss and the

Motion to Remand and it appeared to the Court that the Motion to

Remand should be granted. Because the Court concluded the remand

issue should be decided before the dismissal challenges to the

Federal Action, the Court (1) limited oral argument on 

November 21, 2014, to the Motion to Remand; (2) directed Oracle

to be prepared to advise the Court at oral argument whether, as

suggested in its arguments in opposition to remand, Oracle

intended to strike its copyright claims in the Federal Action if

the Court granted the Motion to Remand; and (3) advised the

parties that it would set a new date for oral argument on the

Motions to Dismiss if they were not mooted by a decision by

Oracle to strike its copyright claims in the Federal Action.

On November 18, 2014, Oracle filed an Answer in the State

Action (as it then “resided” in this Court under the challenged

removal) that included counterclaims for copyright infringement. 

Oracle also filed in both the State and Federal Actions Motions

(#34, #59 respectively) to Consolidate the two actions. 

On November 21, 2014, the Court heard oral argument on the

Motion to Remand and the Motions to Consolidate. At oral

11 - OPINION AND ORDER

Case 3:14-cv-01532-BR Document 39 Filed 11/25/14 Page 11 of 20
argument the Court granted the Motion to Remand and advised the

parties that a written opinion would follow as to the Court’s

decision on the Motion to Remand. The Court also denied as moot

the Motions to Consolidate.

STANDARDS

28 U.S.C. § 1446(a) provides in pertinent part: “A

defendant or defendants desiring to remove any civil action or

criminal prosecution from a State court shall file in the

district court of the United States for the district and division

within which such action is pending a notice of removal." 28

U.S.C. § 1446(b) provides in pertinent part: "The notice of

removal of a civil action . . . shall be filed within thirty days

after the receipt by the defendant, through service or otherwise,

of a copy of the initial pleading setting forth the claim for

relief upon which such action or proceeding is based."

A motion to remand is the proper procedure for challenging

removal. Babasa v. LensCrafters, Inc., 498 F.3d 972, 974 (9th

Cir. 2007). “Removal and subject matter jurisdiction statutes

are strictly construed, and a defendant seeking removal has the

burden to establish that removal is proper and any doubt is

resolved against removability.” Hawaii ex rel. Louie v. HSBC

Bank Nevada, N.A., 761 F.3d 1027, 1034 (9th Cir. 2014)(quotation

omitted). 

12 - OPINION AND ORDER

Case 3:14-cv-01532-BR Document 39 Filed 11/25/14 Page 12 of 20
There is a “strong presumption against removal jurisdiction,

and the removing party has the burden of establishing that

removal is proper.” Lindley Contours, LLC v. AABB Fitness

Holdings, Inc., 414 F. App’x 62, 64 (9th Cir. 2011)(quoting Gaus

v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).

DISCUSSION

The Oregon Plaintiffs move to remand the State Action on the

ground that, among other things, this Court does not have

jurisdiction. 

As noted, Oracle contends in its Response to the Oregon

Plaintiffs’ Motion to Remand that this Court has jurisdiction

over the State Action pursuant to 28 U.S.C. § 1454(a) because

Oracle has asserted copyright claims in the Federal Action and

the Court may look to the copyright claims in the Federal Action

to provide jurisdiction over the State Action. In its Motion to

Consolidate Oracle contends this Court also has jurisdiction

pursuant to § 1454(a) because Oracle asserted copyright

counterclaims in the State Action after removal.

I. This Court does not have jurisdiction over the State Action

under § 1454(a) based on the copyright claims originally

asserted only in the Federal Action. 

“Under the canonical well-pleaded complaint rule, ‘a suit

arises under federal law for 28 U.S.C. § 1331 purposes ‘only when

the plaintiff's statement of his own cause of action shows that

13 - OPINION AND ORDER

Case 3:14-cv-01532-BR Document 39 Filed 11/25/14 Page 13 of 20
it is based upon federal law.’” Hawaii ex rel. Louie, 761 F.3d

at 1034 (quoting Vaden v. Discover Bank, 556 U.S. 49, 60 (2009)). 

In 2011 Congress passed 28 U.S.C. § 1454 to address

potential inequities that might arise from application of the

well-pleaded complaint rule in the context of actions filed in

state court in which plaintiffs did not plead copyright claims

but in which copyright claims were, in fact, the gravamen of the

action. See Univ. of Ky Research Found., Inc. v. Niadyne, Inc.,

2013 WL 5943921, at *5 (E.D. Ky. Nov. 5, 2013)(“[B]y enacting

Section 1454, Congress has broadened federal-court removal

jurisdiction to better ensure that whenever claims arise under

federal patent law, they are removable, irrespective of who

asserted them.”). Section 1454 provides in pertinent part:

A civil action in which any party asserts a claim

for relief arising under any Act of Congress

relating to . . . copyrights may be removed to the

district court of the United States for the

district and division embracing the place where

the action is pending.

* * *

If a civil action is removed solely under this

section, the district court--

(1) shall remand all claims that are neither a

basis for removal under subsection (a) nor within

the original or supplemental jurisdiction of the

district court under any Act of Congress.

28 U.S.C. § 1454(a) and (d)(emphasis added). 

As noted, Oracle contends the State Action is removable

pursuant to § 1454(a) because Oracle has brought copyright claims

14 - OPINION AND ORDER

Case 3:14-cv-01532-BR Document 39 Filed 11/25/14 Page 14 of 20
in the Federal Action. Oracle’s contention, however, is not

supported by the plain language of § 1454, which speaks solely in

terms of removing an action containing a copyright claim or

counterclaim. Specifically, § 1454(a) refers to removal of “a”

civil action in which a party asserts a federal claim for relief. 

It does not refer to multiple civil actions nor does it suggest

an action may be removed if another related action involves a

copyright claim. Thus, although § 1454 permits the Court to look

beyond the complaint for jurisdiction, it does not permit the

Court to look beyond the specific action to a separate action to

find the jurisdictional basis for removal.

The Court also concludes Oracle’s position is also

unsupported by the cases it cites: Concordia Partners, LLC v.

Pick, No. 2:14–cv–09– GZS, 2014 WL 4060253 (D. Me. Aug. 14,

2014); Medtronic, Inc. v. Mirowski Family Ventures, LLC, 134 S.

Ct. 843 (2014); Sleppin v. Thinkscan.com, LLC, No. 14-CV-1387 ADS

ARL, 2014 WL 5431352 (E.D.N.Y. Oct. 23, 2014); and Acorne Prods.,

LLC v. Tjeknavorian, No. 14-CV- 2179 KAM, 2014 WL 3548632

(E.D.N.Y. July 17, 2014). None of the courts in those cases

permitted the defendant to rely on then-pending claims in a

federal action to provide jurisdiction for a separate removed

state-court action.

The Court concludes based on the plain language of § 1454(a)

that the copyright claims asserted by Oracle in the Federal

15 - OPINION AND ORDER

Case 3:14-cv-01532-BR Document 39 Filed 11/25/14 Page 15 of 20
Action do not provide this Court with removal jurisdiction over

the State Action.

II. This Court does not have jurisdiction over the State Action

under § 1454(a) based on the copyright counterclaims

asserted in the State Action after removal.

As noted, Oracle asserts in its Motion to Consolidate that

this Court has jurisdiction over the State Action pursuant to 

§ 1454(a) because Oracle has now asserted copyright counterclaims

in the State Action. The Court disagrees.

Section 1454(a) provides in pertinent part that “[a] civil

action in which any party asserts a claim for relief arising

under any Act of Congress relating to . . . copyrights may be

removed to the district court.” Emphasis added. The statutory

language (“[a] civil action in which any party asserts a claim 

. . . relating to . . . copyrights may be removed”) indicates 

§ 1454(a) provides the federal court with jurisdiction only when

a state-court action already includes a copyright claim or

counterclaim before it is removed to federal court. There is not

any suggestion in § 1454 that Congress intended to broaden the

right to remove by providing defendants with the right to remove

an action that does not contain a copyright claim at the time of

removal but then to remedy the jurisdictional defect post hoc by

adding a copyright counterclaim after removal. 

The Ninth Circuit has made clear that “federal jurisdiction

is determined at the time of removal, not after a case has been

16 - OPINION AND ORDER

Case 3:14-cv-01532-BR Document 39 Filed 11/25/14 Page 16 of 20
removed.” Allen v. F.D.I.C., 710 F.3d 978, 984 (9th Cir. 2013)

(citations omitted). Although § 1454(a) expanded the kind of

claims and pleadings that federal courts may consider when

deciding whether removal is appropriate to include copyright

counterclaims asserted by a defendant, there is not any

indication that § 1454(a) changed the well-established rule that

the time at which federal courts consider the removability of

those claims is at the time of removal.

Oracle acknowledges the Ninth Circuit has not evaluated

removal jurisdiction under § 1454(a). Oracle, therefore, relies

on cases from district courts outside of the Ninth Circuit to

support its contention that assertion of copyright counterclaims

after removal to federal court creates a basis for the federal

court’s jurisdiction over the state action under § 1454. The

Court, however, finds those cases to be unpersuasive.

For example, in Concordia Partners, LLC v. Pick, No. 2:14–

cv–09–GZS, 2014 WL 4060253 (D. Me. Aug. 14, 2014), the plaintiff

filed an action in state court asserting only state-law claims. 

The defendant removed the matter to federal court on the ground

that the plaintiff’s claims, in fact, arose under copyright law,

and, therefore, the federal court had jurisdiction over the

matter. The defendants filed an amended answer after removing

the matter to federal court in which they asserted a counterclaim

for copyright infringement for the first time. The court found

17 - OPINION AND ORDER

Case 3:14-cv-01532-BR Document 39 Filed 11/25/14 Page 17 of 20
it had jurisdiction under § 1454(a):

To the extent that [the plaintiff's] argument

suggests that the Court must rely on the pleadings

as they exist at the time of removal, the Court

acknowledges that this argument is a logical

extension of the rule applied above to resolve the

timeliness argument. However, . . . a logical

extension of . . . District of Maine precedents

and the plain language of 28 U.S.C. § 1454 would

allow this Court to look at the counterclaims as

filed to assess whether the counterclaims qualify

for removal under § 1454. As Defendants have

pointed out, the “hypertechnical” alternative

would be to remand the case so that Defendants

could officially file their copyright counterclaim

before the state court and then remove the case

once again based on her newly asserted

counterclaims. In an already procedurally

convoluted case, requiring this case to be

remanded and re-removed would be inefficient and a

waste of judicial resources.

Id., at *4. The other cases Oracle relies on (Sleppin v.

Thinkscan.com, LLC, No. 14-CV-1387 ADS ARL, 2014 WL 5431352

(E.D.N.Y. Oct. 23, 2014), and Acorne Prods., LLC v. Tjeknavorian,

No. 14-CV- 2179 KAM, 2014 WL 3548632 (E.D.N.Y. July 17, 2014))

cite to and rely on Concordia. 

The Court, however, disagrees with the reasoning of the 

Concordia court and the courts that rely on Concordia. This

Court finds the considerations of judicial efficiency and the use

of judicial resources do not permit the Court to ignore

established Ninth Circuit law that the Court’s jurisdiction is to

be determined at the time of removal and that the Court is to

“strictly construe” the “[r]emoval and subject matter

jurisdiction statutes.” Although the alternative to overlooking

18 - OPINION AND ORDER

Case 3:14-cv-01532-BR Document 39 Filed 11/25/14 Page 18 of 20
the lack of this Court’s jurisdiction at the time of removal may

appear to be “hypertechnical,” this Court’s jurisdiction is not a

creature of convenience. The Court cannot overlook the plain

language of § 1454(a) and the Ninth Circuit’s mandate to evaluate

jurisdiction at the time of removal even when the result may be

inconvenient for the parties or for the Court.

In summary, the Court concludes § 1454(a) does not support

Oracle’s proposition that this Court had jurisdiction at the time

that Oracle removed the State Action to this Court. In addition,

§ 1454(a) does not create jurisdiction in this Court when, as

here, a party files a copyright claim or counterclaim after

removal. Oracle, therefore, has not met its burden to establish

that removal of the State Action was proper and that this Court

has jurisdiction over that action. 

Accordingly, the Court grants Oregon Plaintiffs’ Motion to

Remand for lack of jurisdiction.

Because the Court concludes it does not have jurisdiction,

the Court does not address the Oregon Plaintiffs’ other grounds

for remand.

CONCLUSION

For these reasons, the Court DENIES as moot Oracle’s Motion

(#34) to Consolidate, GRANTS the Oregon Plaintiffs’ Motion (#25)

to Remand, and REMANDS this matter to Marion County Circuit

19 - OPINION AND ORDER

Case 3:14-cv-01532-BR Document 39 Filed 11/25/14 Page 19 of 20
Court.

IT IS SO ORDERED.

DATED this 25th day of November, 2014.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

20 - OPINION AND ORDER

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