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United States District Court, Northern District of California

January 13, 2003


The opinion of the court was delivered by: Charles R. Breyer, United States District Judge.


Now before the Court are plaintiffs' motion for remand to Superior Court and defendants' motion to dismiss for failure to state a claim entitling plaintiffs to relief. Having considered the parties' pleadings and oral arguments, the Court finds that removal to this Court was proper and orders dismissal of the case pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.


Plaintiffs brought suit in California Superior Court against Donald Leonard and Ernestine Rampolas, employees of the American National Red Cross, because defendants did not give plaintiffs emergency housing when plaintiffs' hotel rooms were overrun by "pestilence." According to plaintiffs, defendants were "mean-spirited" in their denial of emergency housing, offering only to help them find room in a county shelter. Plaintiffs allege that defendants' behavior was in violation of the "mission of the Red Cross." Compl. ¶ 4.


A. Plaintiffs' Motion for Remand

Defendants removed the case to federal court under 36 U.S.C. § 300105, which provides that the Red Cross has "the power to sue and be sued in court of law and equity, State or Federal, within the jurisdiction of the United States." As interpreted by the Supreme Court. the "sue and be sued" provision of the Red Cross charter confers "original jurisdiction on federal courts over all cases to which the Red Cross is a party, with the consequence that the organization is thereby authorized to remove from state to federal court any state-law action it is defending" American Nat'l Red Cross v. S.G., 505 U.S. 247, 258 (1992). Defendants thus had a legitimate basis for removal.

Plaintiffs contend, however, that defendants did not remove within 30 days of receipt of service, as required by 28 U.S.C. § 1446. Defendants received plaintiffs' complaint and summons on September 19, 2002 and filed a petition for removal on October 21, 2002, thirty-two days later. While Rule 6(a) of the Federal Rules of Civil Procedure states that weekends count when computing time periods greater than eleven days, it also states that when the last day of a specified time period falls on a weekend, the party has until the end of the following business day to file. Here, defendants' thirty days elapsed on October 19, 2002, which was a Saturday. Accordingly, defendants had until Monday, October 21 to file their petition for removal. They therefore filed in a timely fashion.

Moreover, 28 U.S.C. § 1447 (c) requires that motions to remand a case for procedural defects in the removal must be filed within thirty days of the filing of the removal petition. Here, plaintiffs sent a letter to the Court requesting remand on November 25, 2002 and then filed a formal motion to remand on December 12, 2002. Both dates are outside the thirty-day window.

For these reasons, removal was proper, and plaintiffs' motion for remand is DENIED.

B. Dismissal

Defendants' motion to dismiss is based exclusively on the argument that plaintiffs did not allege in their complaint that the Red Cross owed them a duty to provide them with emergency housing. Citing to Balistreri v. Pacifica Police Dep't, 901 F.2d 696 (9th Cir. 1988), defendants argue that "[f]ailure to plead a duty to act warrants dismissal under Rule 12(b)(6)." Defs.' Mot. to Dismiss 4. In Balistreri, a case involving a police department's alleged failure to prevent a crime, the court first observed that "[t]here is, in general, no constitutional duty of state officials to protect members of the public at large from crime" id. at 699-700, and then went on to note that the plaintiff had alleged no special circumstances that would vitiate that general rule. By analogy, defendants here argue that the Red Cross owes no generalized duty to the public, and that the organization had no special relationship with plaintiffs that would impose a special duty to act.

The Red Cross charter states that the organization will provide "a system of . . . relief" to "mitigat[e] the sufferings caused by pestilence, famine, fire, floods, and other great national calamities." 36 U.S.C. § 300102(4). Plaintiffs allege that their landlord's repeated failure to rid their rooms of pestilence constituted such suffering, and that the Red Cross was required to respond by providing emergency services. However, the sort of pestilence referenced in the Red Cross charter is the sort that constitutes a "great national calamit[y]." Id. Other courts that have reflected on the mission of the Red Cross have noted that the organization exists to afford relief on a systemic, rather than individualized, level. See, e.g., Berman v. American Nat'l Red Cross, 834 F. Supp. 286, 288 (N.D. Ind. 1993) (Red Cross was founded to provide hospital service for warring armies but has expanded to provide "a system of national and international relief"); U.S. v. City of Spokane, 734 F.2d 919, 920 (E.D. Wash. 1989) ("The American Red Cross has been charged by the United States Government with the responsibility of meeting the commitments of the United States under several Geneva conventions, performing services on behalf of the Armed Forces of the United States, and assisting the federal government in providing disaster relief to states when needed."). Because the facts as pled do not indicate that plaintiffs were victims of a calamity of national dimension, and because plaintiffs do not plead facts suggesting that the Red Cross owed them a special duty above and beyond what is owed to the general public, the complaint fails to state a claim entitling plaintiffs to relief.

While the Complaint primarily concerns plaintiffs' belief that the Red Cross violates its mission when it refuses services to victims of unabated pestilence, it also contains an oblique allusion to class discrimination. See Compl. ¶ 4 ("There is no place [in the Red Cross] for mean spiritness, degradation, and class discrimination."). To the extent that plaintiffs intended to allege discrimination by the Red Cross, the Court finds that this lone allusion fails to "give the defendant[s] fair notice of what the plaintiffs claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1956) (quoting Fed.R.Civ.P. 8(a)(2)). Any purported discrimination claim is thus insufficiently alleged.

Accordingly, defendants' motion to dismiss is hereby GRANTED.



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