The opinion of the court was delivered by: Marilyn Hall Patel Chief Judge United States District Court Northern District of California
MEMORANDUM AND ORDER re Plaintiff's Motion to Remand
Plaintiffs filed this action in California Superior Court for wrongful death and negligence in the death of their twelve-year-old son, Jeffrey Simpson, who was hit by a train while riding his bicycle to school. After the Alameda County Superior Court sustained a demurrer filed by the San Leandro Unified School District ("the School District"), defendants National Railroad Passenger Corporation ("Amtrak"), Union Pacific Railroad, and James F. Abrams (collectively "Amtrak") removed the action to federal court. Now before the court is plaintiffs' motion for remand. Having considered the parties' arguments and submissions, and for the reasons set forth below, the court rules as follows.
According to plaintiffs' complaint, on the morning of March 1, 2001, Jeffrey Simpson rode his bicycle to John Muir Middle School in San Leandro, California. While crossing train tracks at a pedestrian walkway near his school that was unguarded by gates, Jeffrey was struck and killed by a train operated by defendant Amtrak and driven by defendant Abrams.
On February 19, 2002, plaintiffs commenced an action in Alameda County Superior Court against both the present defendants and the School District. Plaintiffs alleged various acts of negligence that caused their son's death, including faulty operation and management of the train, inadequate protection by the city at the pedestrian crossing at which the tragedy occurred, and insufficient warning and precaution taken by the school district.
The defendants did not file a notice of removal in federal court, but instead filed an answer to plaintiffs' complaint on June 3, 2002. Defendant Amtrak acknowledges that at the time it was initially served with the state court complaint, it was unable to obtain the consent necessary from the defendant School District for removal from the state.*fn1 Notice of Removal ¶ 7. The School District demurred to the complaint on grounds that it had no duty to protect its students from dangers outside of school grounds. On July 9, 2002, the Superior Court sustained the demurrer but granted leave to amend the complaint to include the School District. Right-hand Dec., Exh. A. Plaintiffs filed a first amended complaint, and the School District once again demurred. After the parties submitted papers and appeared for argument, the court sustained the second demurrer on September 30, 2002. On October 15, 2002, the remaining defendants filed a notice of removal in this court.
Plaintiffs now move to remand on grounds that defendants' removal is procedurally defective because not all defendants formally joined the removal and because the notice of removal was not filed within thirty days after either receipt of the complaint or any other voluntary action on the part of the plaintiff.*fn2 Defendants argue that their present removal is timely because the initial obstacle to removal was a fraudulently joined defendant, the School District. Plaintiff contests that the School District was fraudulently joined.
An action is removable to a federal court only if it might have been brought there originally. 28 U.S.C. § 1441(a). The removal statute is strictly construed, and the court must reject federal jurisdiction if there is any doubt as to whether removal was proper. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). The defendants bear the burden of proving the propriety of removal. Id.
I. Consent to Removal by the City of San Leandro
Plaintiff first argues that the action should be remanded to state court because defendant City of San Leandro has not filed a formal document in this court stating its concurrence with the removal. In cases involving multiple defendants, all defendants must consent to removal within the required thirty-day period. Chicago, Rock Island, & Pac. Ry. Co. v. Martin, 178 U.S. 245 (1900); Parrino v. FHP, Inc., 146 F.3d 699, 703 (9th Cir. 1998). This is commonly known as the unanimity requirement.
Attached as an exhibit to Amtrak's timely notice removal is a letter from Alan Cohen, counsel for the co-defendant City of San Leandro. Notice of Removal, Exh. D, Cohen Letter dated Oct. 9, 2002 ("Cohen Letter"). In this letter, addressed to counsel for Amtrak, Cohen identifies himself as counsel for City of San Leandro in this action, states that he has discussed removal to federal court with counsel for Amtrak and with his clients, and states that he and his clients consent to removal. Id. Plaintiff challenges the validity of this consent on the basis that it is not contained within a formal court filing. See Ford v. New United Motors Mfg., Inc., 857 F. Supp. 707, 708 n.3 (N.D. Cal. 1994) (stating that each defendant must file "a document in which the defendant formally concurs with the removal").
At least one federal court has refused to recognize agreement based solely on the representations by one defendant in the notice of removal that all defendants consent. See, e.g., Getty Oil Corp. v. Ins. Co. of N. Am., 841 F. 2d 1254, 1262 n.11 (5th Cir. 1988). In order to bind the consenting defendants to their decision to remove, the Getty Oil court held that "there must be some timely filed written indication from each served defendant, or from some person or entity purporting to formally act on its behalf in this respect and to have authority to do so, that it has actually consented to such action." Id. Even assuming that the rule of Getty ...