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Gilb v. Chiang

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 16, 2008

DAVID A. GILB, CALIFORNIA DEPARTMENT OF PERSONNEL ADMINISTRATION, PETITIONERS/PLAINTIFFS,
v.
JOHN CHIANG, SUED HEREIN IN HIS OFFICIAL CAPACITY ONLY; OFFICE OF THE STATE CONTROLLER, RESPONDENTS/DEFENDANTS.
CALIFORNIA CORRECTIONAL PEACE OFFICERS' ASSOCIATION; CALIFORNIA STATEWIDE LAW ENFORCEMENT ASSOCIATION; STATIONARY ENGINEERS LOCAL 39 INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO; CALIFORNIA ASSOCIATION OF PROFESSIONAL SCIENTISTS; PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT; YVONNE WALKER AND SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000; CALIFORNIA ATTORNEYS, ADMINISTRATE LAW JUDGES, AND HEARING OFFICERS IN STATE EMPLOYMENT (CASE) INTERVENOR RESPONDENTS/ DEFENDANTS

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

The present action, filed August 11, 2008 in state court by the State of California, through the Department of Personnel Administration ("DPA"), seeks to compel compliance by Petitioner/Defendants John Chiang and the Office of the State Controller ("Controller") with Governor Schwarzenegger's Executive Order S-09-08 requiring various emergency measure in light of the state budget impasse. The matter was removed here by Intervenor Respondents/Defendants California Correctional Peace Officers' Association and California State Law Enforcement Association on August 20, 2008, who contend that federal jurisdiction is conferred because of the existence of a federal question under 28 U.S.C. § 1441(b).

Some three weeks later, on September 10, 2008, DPA filed its Motion to Remand the instant matter under 28 U.S.C. § 1447(c). Pursuant to the Court's schedule for hearing regularly-noticed motions under Local Rule 78-230(b), the Motion to Remand was set for hearing on October 17, 2008. Concurrently with its Motion, however, the DPA filed an ex parte application to hear the matter on shortened time under Local Rule 6-144(e). That application is now before the Court.

Rule 6-144(e) allows the Court to shorten time only upon affidavit of counsel showing a satisfactory explanation for the need for issuance of such an order. Following examination of the papers submitted, this Court concludes that no such satisfactory explanation has been demonstrated. As stated above, the instant lawsuit was removed to federal court on August 20, 2008.

While counsel for DPA contends that the remand issue must now be determined immediately, and outside the confines of the normal briefing schedule for adjudicating such matters, DPA has not explained why it could not have immediately sought the requested relief following removal of the case to this Court on August 20, 2008. As pointed out in opposition to DPA's ex parte application, the DPA has not shown that remand is any more urgent now than it was at the time of removal.

Had the Motion to Remand been filed immediately after removal, the Motion could have been heard upon full notice and time to respond in accordance with both the Court's Local Rules and the Federal Rules of Civil Procedure. DPA's belated attempt to request emergency relief from the schedule for filing civil motions in accordance with those rules does not satisfy the good cause standard for relief as stated in Local Rule 6-144(e). Consequently, DPA's ex parte application is DENIED. The Motion to Remand will remain on the Court's regular civil motion calendar for October 17, 2008 at 9:00 a.m.

IT IS SO ORDERED.

20080916

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