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United States District Court, Northern District of California

April 14, 2003


The opinion of the court was delivered by: Maxine M. Chesney, United States District Judge

Before the Court is plaintiffs Motion to Remand, filed February 20, 2003 pursuant to 28 U.S.C. § 1447 (c). Defendants have filed opposition, to which plaintiff has replied. Having considered the papers filed in support of and in opposition to the motion, the Court finds the matter appropriate for decision on the papers, VACATES the hearing scheduled for April 18, 2003, and rules as follows.

Defendants' notice of removal is untimely.*fn1 "The notice of removal of a civil action or proceeding 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." 28 U.S.C. § 1446 (b). Defendants concede that their notice of removal was filed "42 days after service of the Complaint." (See Opp. at 1:23.) Defendants have failed to show that plaintiff has waived the defect or otherwise should be estopped from seeking remand. See Fristoe v. Reynolds Metal Co., 615 F.2d 1209, 1212 (9th Cir. 1980) ("Although the time limit [under 28 U.S.C. § 1446 (b)] is mandatory and a timely objection to a late petition will defeat removal, a party may waive the defect or be estopped from objecting to the timeliness by sitting on his rights.").*fn2 Contrary to defendants' argument, plaintiffs agreement to extend by 10 days the deadline for filing "responsive pleadings" does not constitute grounds for a finding of waiver or estoppel to assert untimely removal. See Ortiz v. General Motors Acceptance Corp., Inc., 583 F. Supp. 526, 531 (N.D. Ill. 1984) (holding plaintiff did not waive right to file motion to remand on untimeliness grounds where plaintiff had filed stipulation extending time for defendant to "answer or otherwise plead").*fn3 Nor does the fact or form of plaintiffs consent to proceed before a magistrate judge operate as a waiver of plaintiffs right to assert untimely removal. See Intercoastal Refining Co, Inc. v. Jalil, 487 F. Supp. 606, 608 (S.D. Tex. 1980) ("[W]aiver of the right to remand has been described as: affirmative conduct or unequivocal assent of a sort which would render it offensive to fundamental principles of fairness to remand. . . .") (quoting Maybruck v. Haim, 290 F. Supp. 721 (S.D.N.Y. 1968). Finally, any lack of prejudice to plaintiff or the fact of exclusive federal jurisdiction, if such be the case, will not serve to vitiate the time limit prescribed by section 1446(b). See Schmitt v. Ins. Co. of North America, 845 F.2d 1546 (9th Cir. 1988) (holding remand of removed action "became mandatory under section 1447(c) once the district court determined that [the] petition for removal was untimely.") If, as defendant argues, the state court lacks jurisdiction over plaintiffs complaint, defendant's remedy at this juncture is to file a motion to dismiss in that court. Consequently, the action will be remanded.

"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." 28 U.S.C. § 1447 (c). District courts have "wide discretion" to award costs and fees under section 1447(c), even in the absence of a finding that the defendant acted in bad faith. See Moore v. Permanente Medical Group, 981 F.2d 443 (9th Cir. 1992). Although defendants raise several arguments in their opposition as to why the action may proceed in federal court notwithstanding the untimeliness of the removal, defendants fail to set forth any authority in support of those arguments and make no other showing that a reasonable basis for the exercise of federal jurisdiction exists. Under such circumstances, the Court finds that an award of attorney's fees and costs is appropriate, and further finds the amount claimed by plaintiff is reasonable.

Accordingly, for the reasons stated above:

1. The motion to remand is GRANTED and the case is hereby REMANDED to the Superior Court of California for the County of Santa Clara.

2. Plaintiff is hereby AWARDED his attorney's fees in the amount of $3,262.00.

This closes Docket No. 8.

The Clerk shall close the file.


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