United States District Court, S.D. California
September 15, 2005.
PAUL C. HAMILTON, Plaintiff,
F. HOLMES; J. NAPOLITANO; M. BROWN; A. FAVILA; T. LOFTIN, Defendants.
The opinion of the court was delivered by: DANA SABRAW, District Judge
ORDER CONSTRUING PLAINTIFF'S OBJECTIONS TO REMOVAL AS A MOTION TO
REMAND AND DIRECTING DEFENDANTS TO FILE A RESPONSE
Plaintiff, an inmate currently incarcerated at Centinela State
Prison ("CEN") in Imperial, California, and proceeding pro se,
filed a "Civil Action for Protection of Rights, Damages and
Injunctive Relief" pursuant to "Cal. Civil Code 52.1(a)(b)(c)" in
Imperial County Superior Court on June 13, 2005. The case was
assigned Civil No. ECU0253. After Plaintiff effected service upon
all Defendants, they filed a "Notice of Removal of Action Brought
Under 28 U.S.C. § 1441(b) (Federal Question)" in this Court on
August 3, 2005 [Doc. No. 1].
I. Procedural History
On August 22, 2005, Plaintiff filed a Notice of and Objections
to "Defendants' Attempt to Remove State Civil Action to Federal
District Court" [Doc. Nos. 2, 3]. Plaintiff requests that this
Court "den[y] removal of this action," based on claims that it is
"governed primarily by the laws of the State." See Pl.'s Obj.
[Doc. No. 3] at 2. II. Removal and Remand per 28 U.S.C. §§ 1446, 1447
A remand may be ordered either for lack of subject matter
jurisdiction or for any defect of removal procedure. See
28 U.S.C. § 1447(c). The proper procedure for challenging removal is
a "Motion for Remand" made in accordance with the Federal Rules
of Civil Procedure. See FED.R.CIV.P.7(b); S.D.CAL. CIVLR 7.1.
While a Motion to Remand based on a technical defect in the
removal procedure must be made within 30 days after filing of the
Notice of Removal per 28 U.S.C. § 1447(c), a Motion for Remand
based on assertions that the claim does not "arise under" federal
law questions the district court's subject matter jurisdiction
and can be raised at any time before final judgment.
28 U.S.C. § 1447(c); Int'l Primate Protection League v. Adm'rs of Tulane Ed.
Fund, 500 U.S. 72, 87 (1991).
Because Plaintiff is proceeding pro se, this court has a duty
to construe his motions, as well as his complaint, liberally.
See Haines v. Kerner, 404 U.S. 519-20 (1972) (holding that
allegations asserted by pro se petitioners, "however inartfully
pleaded," are held "to less stringent standards than formal
pleadings drafted by lawyers."); Bernhardt v. Los Angeles
County, 339 F.3d 920, 925 (9th Cir. 2003) ("Courts have a duty
to construe pro se pleadings liberally, including pro se motions
as well as complaints."); Zichko v. Idaho, 247 F.2d 1015, 1020
(9th Cir. 2001) (acknowledging court's duty to construe pro se
prisoner motions and pleadings liberally); Karim-Panahi v. Los
Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988) (court
must construe civil rights cases filed in pro se liberally "and
must afford plaintiff the benefit of any doubt"); Christensen v.
CIR, 786 F.2d 1382, 1384 (9th Cir. 1986) (construing pro se
taxpayer's motion to "place statements in the record" as a motion
for leave to amend).
Thus, despite the fact that Plaintiff's Objections are not
properly captioned as a "Motion to Remand," it is clear that is
what Plaintiff seeks. Moreover, while it is less clear whether
Plaintiff wishes to challenge Defendants' decision to seek
removal based on either a technical defect in removal procedure
or a lack of subject matter jurisdiction, his objections were
timely filed. See 28 U.S.C. § 1447(c). A Motion to Remand effectively forces Defendants the parties
who invoked this Court's removal jurisdiction to prove by a
preponderance of the evidence whatever is necessary to support
the removal, e.g., the existence of diversity, the amount in
controversy, or the federal nature of the claim. See Gaus v.
Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). However, while
Plaintiff's Notice of and Objections to Removal include a proof
of service upon Defendants' counsel dated August 18, 2005, and
Defendants have since sought and received an ex parte extension
of time in which to file an "Answer or other responsive pleading"
to Plaintiff's Complaint [Doc. Nos. 4, 5], they have not yet
responded to Plaintiff's Notice of and Objections to Removal.
III. Conclusion and Order
Good cause appearing, IT IS HEREBY ORDERED that Plaintiff's
Notice of and Objections to Defendants' Notice of Removal [Doc.
Nos. 2, 3] are to be construed as a Motion to Remand this action
to state court pursuant to 28 U.S.C. § 1447(c).
Defendants are further ORDERED to file and serve upon
Plaintiff either an Opposition to Plaintiff's Motion to Remand or
a Notice of Non-Opposition on or before September 24, 2005. The
matter will be submitted and decided on the papers without oral
argument pursuant to S.D. CAL. CIVLR 7.1.d.1. Moreover,
Defendants' September 24, 2005 deadline for filing an Answer or
other responsive pleading to Plaintiff's Complaint is hereby
VACATED. New dates for filing an Answer or other responsive
pleading shall be deferred until Plaintiff's Motion for Remand
has been decided, and the existence of federal subject matter
jurisdiction has been confirmed.
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