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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

IntelliTikes, LLC, 

Plaintiff, 

v. 

Connie Jordan, 

Defendant. 

No. CV-15-02205-PHX-NVW

ORDER 

Before the Court is Plaintiff’s Motion to Remand (Doc. 16), Defendant’s CrossMotion to Dismiss All Claims Subject Only to Federal Jurisdiction Prior to Any Remand 

(Doc. 19), and the parties’ accompanying briefs. Also before the Court is Plaintiff’s 

Motion to Strike Defendant’s Reply or Alternatively Motion for Leave to File Sur-Reply 

(Doc. 27). For the reasons that follow, Plaintiff’s Motion to Remand will be granted and 

Defendant’s Cross-Motion to Dismiss will be denied. As a result, Plaintiff’s Motion to 

Strike Defendant’s Reply or Alternatively Motion for Leave to File Sur-Reply will be 

denied as moot. 

I. BACKGROUND 

Plaintiff IntelliTikes, LLC (“IntelliTikes”) is an Arizona company that creates and 

distributes books, curriculum plans, and other education materials designed for young 

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children. IntelliTikes has two members: Kelly Delforge and Defendant Connie Jordan. 

Delforge owns 51% of the company, and Jordan owns 49%. 

On December 8, 2014, IntelliTikes filed a complaint against Jordan in state court. 

(Doc. 1-1 at 3-12.) The complaint alleged Jordan had failed to carry out certain duties 

owed to IntelliTikes, such as the duty to protect the company’s intellectual property 

rights, the duty to fund company expenses, and the duty to inform the company about her 

business activities. (See id. at 5, 7-8.) The complaint also alleged Jordan had acted 

contrary to IntelliTikes’ interests by using company property for personal gain, 

attempting to take ownership of company assets, and directly competing with the 

company. (See id. at 5-6, 8-9.) 

On October 2, 2015, Delforge was deposed. At deposition, defense counsel asked 

Delforge to examine an email sent by Jordan and to identify the statements in the email 

with which she disagreed. (See Doc. 1-1 at 41.) In response, Jordan said she disagreed 

with the statement that “all content pages were done in China” because she had done “the 

lion’s share of all of the work” on some of the education books in question. (Id.) To a 

follow-up question, Delforge said she had “composed those books from scratch.” (Id.) 

On November 2, 2015, Jordan filed a notice of removal in this Court. (Doc. 1.) 

The notice invokes 28 U.S.C. § 1441, claiming this Court has exclusive jurisdiction over 

the federal copyright claims in this action pursuant to 28 U.S.C. § 1338 and pendent 

jurisdiction over the other claims. (Id. at ¶¶ 5-6.) The notice further contends that 

IntelliTikes’ federal copyright claims were “camouflaged as state law actions” in the 

original complaint and that the “true nature” of these federal claims was “not clear” until 

Delforge’s recent deposition testimony. (Id. at ¶ 8.) 

IntelliTikes moves to remand on the grounds that the notice of removal is untimely 

and that, in any event, there are no claims in this action supporting federal jurisdiction. 

(Doc. 16.) In response, Jordan argues that the untimeliness of her notice is not 

determinative, that there are federal claims in IntelliTikes’ complaint, and that even if 

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remand is appropriate, any claims subject to exclusive federal jurisdiction should be 

dismissed first. (Doc. 19.) 

II. ANALYSIS 

Jordan’s notice of removal was untimely. The action will be remanded without 

considering whether there is federal jurisdiction, exclusive or otherwise, over any of 

IntelliTikes’ claims. 

A. Removal Was Untimely. 

The procedure for removal is governed by 28 U.S.C. § 1446. Generally, a notice 

of removal must be filed within 30 days after receipt of “the initial pleading setting forth 

the claim for relief.” 28 U.S.C. § 1446(b)(1). However, “if the case stated by the 

pleading is not removable,” a notice of removal may be filed within 30 days after receipt 

of the “amended pleading, motion, order or other paper from which it may first be 

ascertained” that the case is removable. 28 U.S.C. § 1446(b)(3). Where, as here, “the 

timeliness of removal under section 1441 is at issue, . . . removal statutes are to be strictly 

construed against federal court jurisdiction. When the defendant receives enough facts to 

remove on any basis under section 1441, the case is removable, and section 1446’s thirtyday clock starts ticking.” Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1253 (9th 

Cir. 2006). 

Jordan claims the removability of this case was not ascertainable until Delforge’s 

deposition on October 2, 2015. But Jordan made the very argument that underlies her 

current claim of removability—namely, exclusive federal jurisdiction under 28 U.S.C. 

§ 1338—in state court months earlier. In a brief dated April 6, 2015, Jordan urged the 

state court to dismiss one of IntelliTikes’s claims on the ground that “all assets claimed in 

Plaintiff’s Complaint are ‘intellectual property’ over which [the state court] has no 

jurisdiction” and “[u]nder 28 U.S.C. § 1338, jurisdiction of matters dealing with 

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copyrighted material lies solely with district courts.” (Doc. 16-1 at 6.) Having made this 

argument in April, Jordan cannot claim it was unascertainable until October. 

Moreover, Delforge’s deposition testimony was unremarkable relative to the 

complaint. Delforge’s statement that she had “composed those books from scratch” was 

in response to direct questioning from opposing counsel about a subset of IntelliTikes’ 

alleged education books. This testimony does not indicate a federal copyright claim 

against Jordan more than IntelliTikes’ complaint does. Although the Court does not 

decide whether there is a federal copyright claim here, any such claim would find better 

footing in the complaint than the deposition. For example, paragraph 20 of the complaint 

alleged that Jordan “purported to take ownership of copyrights and other proprietary 

rights that belong to the Company.” (Id. at 5.) And paragraphs 56 and 57 alleged that 

Jordan “failed to respond” to IntelliTikes’ demand that she cease and desist “infringement 

of intellectual property rights owned by the Company.” (Id. at 10.) In other words, 

removability was not more ascertainable from the deposition than the complaint. Thus, 

Jordan cannot claim the deposition was what first made removability ascertainable. 

Because Jordan did not file the notice of removal within 30 days of IntelliTikes’ 

complaint or any other document from which removability “may first be ascertained,” the 

removal was untimely. 

B. Further Consideration of the Removed Claims Is Unwarranted. 

Jordan argues that even if removal was untimely, the Court should dismiss any 

claims that are subject to exclusive federal jurisdiction before remanding. This argument 

has some intuitive appeal, since it would seem “fruitless to remand for untimeliness a 

claim over which federal district court[s] hold[] exclusive jurisdiction.” Stipelcovich v. 

Directv, Inc., 129 F. Supp. 2d 989, 994 (E.D. Tex. 2001). But Jordan offers no legal 

authority for what initially seems like an ultra vires proposal. Cf. Cantrell v. Great 

Republic Ins. Co., 873 F.2d 1249, 1256 (9th Cir. 1989) (“Because we conclude that the 

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case should have been remanded to state court, we reverse the district court’s order 

dismissing the case under Rule 12(b)(6).”). 

The more prudent course of action is to remand without deciding whether there is 

federal jurisdiction over IntelliTikes’ claims. This cautious approach is in line with the 

majority of cases addressing the issue. See Harbor Commc’ns, LLC v. S. Light, LLC, No. 

CIV.A. 14-00403-CB-B, 2015 WL 419854, at *4 (S.D. Ala. Feb. 2, 2015) (collecting 

cases). This approach is also consistent with the presumption of strictly construing 

removal statutes, see Durham, 445 F.3d at 1253, and the judicial custom against deciding 

more issues than necessary. 

The opposite approach would create perverse incentives. Jordan’s notice of 

removal was nearly ten months late. To evaluate the basis of her removal despite the 

long delay would encourage defendants to ignore the statutory timing restrictions. More 

troublingly, the state court here already made the evaluation Jordan seeks. As explained 

above, Jordan urged the state court to dismiss one of IntelliTikes’ claims in light of the 

exclusive federal jurisdiction conferred by 28 U.S.C. § 1338. Evidently unpersuaded, the 

state court declined to dismiss the claim in question. (See Maricopa County Superior 

Court No. CV2014-014653, Doc. 19.) To evaluate Jordan’s argument here would 

encourage defendants to use removal for a second bite of the apple. But “this Court is not 

a state appellate court, and removal is not the appropriate method for challenging a state 

court’s ruling.” Harbor Commc’ns, 2015 WL 419854, at *5. 

C. Plaintiff’s Fee Request Is Not Currently Before the Court. 

Because the Court remands for untimeliness without further consideration of the 

removed claims, IntelliTikes’ motion for leave to file additional briefing on the matter 

(see Doc. 27) is moot. As a result, the Court does not consider IntelliTikes’ proposed 

additional briefing (see Doc. 28), which includes a request for fees and costs. 

However, IntelliTikes may file a separate motion for fees and costs pursuant to 28 

U.S.C. § 1447(c) and in compliance with LRCiv 54.2 within 14 days of this order. This 

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Court retains jurisdiction to entertain such a motion after remand. See Moore v. 

Permanente Med. Grp., Inc., 981 F.2d 443, 445 (9th Cir. 1992); Gilding v. Carr, 608 F. 

Supp. 2d 1147, 1156 (D. Ariz. 2009). 

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Remand (Doc. 16) is 

granted. 

IT IS FURTHER ORDERED that Defendant’s Cross-Motion to Dismiss All 

Claims Subject Only to Federal Jurisdiction Prior to Any Remand (Doc. 19) is denied. 

IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike Defendant’s Reply 

or Alternatively Motion for Leave to File Sur-Reply (Doc. 27) is denied as moot. 

IT IS FURTHER ORDERED directing the Clerk of the Court to remand this case 

to Maricopa County Superior Court. 

 Dated this 24th day of February, 2016. 

Neil V. Wake

United States District Judge

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