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HAMILTON v. HOLMES

United States District Court, S.D. California


September 15, 2005.

PAUL C. HAMILTON, Plaintiff,
v.
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.

20050915

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