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Robinson v. Adams

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 15, 2008

GEORGE H. ROBINSON, PLAINTIFF,
v.
D. G. ADAMS, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF'S MOTION TO REMAND BE DENIED (Doc. 6)

OBJECTIONS DUE WITHIN FIFTEEN DAYS

Plaintiff George H. Robinson ("Plaintiff") is a state prisoner proceeding pro se in this civil action. Defendants Adams, David, Melo, Martinez, Ruiz, Miranda, Mendoza, and Masiel ("Defendants") filed a notice of removal from Kings County Superior Court on September 11, 2008. Plaintiff filed a motion to remand on September 26, 2008. Defendants did not file a response.

Plaintiff filed suit in state court on May 13, 2008. Doc. 1. Defendants were personally served on August 12, 2008, and filed their notice of removal on September 11, 2008, which was the thirtieth and final day for removal. 28 U.S.C. § 1441(b); Doc. 1, Ex. B.

Plaintiff argues that Defendants' notice of removal was untimely because they were first served by mail on June 13, 2008, in compliance with California Code of Civil Procedure § 415.30. Plaintiff contends that Defendants made a tactical decision not to respond to service by mail, which caused Plaintiff to have to serve them again.

Section 415.30 provides for service by mail. However, service is deemed complete upon execution of a written acknowledgment of receipt of summons. Cal. Civ. Proc. § 415.30(c) (West 2008). In this instance, because Defendants did not execute and return written acknowledgments to Plaintiff, service by mail was not completed. Defendants were subsequently personally served on August 12, 2008, and the thirty-day removal period began to run from that date.

Because Defendants filed their notice of removal within thirty days of personal service, the Court HEREBY RECOMMENDS that Plaintiff's motion to remand, filed September 26, 2008, be DENIED.

These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fifteen (15) days after being served with these Findings and Recommendations, the parties may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.

20081215

© 1992-2008 VersusLaw Inc.



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