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Evans v. Bantek West

March 11, 2009



This matter is before the court on plaintiff's motion to remand this action to state court pursuant to 28 U.S.C. § 1447(c).

I. Factual and Procedural Background

Plaintiff filed a putative class action in Sacramento County Superior Court and effected service on Bantek West Inc. ("Bantek") on April 26, 2006. (Cagney Decl. Ex. 1-2.) The Complaint alleged that Bantek, a Colorado corporation engaged in the business of maintaining automated teller machines and bank computers, failed to provide adequate meal periods to plaintiff and similarly situated employees and failed to pay certain wages, all in violation of California Labor Code sections 226.7 and 203 and Business and Professions Code sections 17200-17210. (Id. Ex. 1 at 21, 24-26.) The Complaint also asserted the same causes of action against certain defendants whose identities were not yet known to plaintiff, sued under fictitious names ("Does 1 through 100"). (Id. Ex. 1 at 21.)

Plaintiff and Bantek proceeded to litigate the matter for over two years in state court. (See Mot. Remand 3:12-20; Cagney Decl. Exs. 5-10.) Plaintiff then filed a First Amended Complaint ("FAC") on February 25, 2008, in order to designate alleged rest and meal period violations as separate causes of action. (Cagney Decl. ¶ 16, Ex. 11.) Thereafter, plaintiff added Pendum LLC ("Pendum") as a defendant in the action through an amendment to the FAC, which was served on Pendum on November 11, 2008.*fn1 (Gemoets Decl. ¶ 2.) Plaintiff argues that "Pendum is simply another name" for Bantek, while Pendum asserts that the two are "distinct legal entities." (Compare Mot. Remand 2:15, with Pendum's Opp'n 6:7.)

Bantek terminated plaintiff's employment at some point in 2008, and plaintiff sought leave from the state court on August 15, 2008, to file a supplemental complaint in the action to allege wrongful termination. (Cagney Decl. ¶ 17.) Bantek successfully opposed the filing of the proposed supplemental complaint. (Mot. Remand Exs. 13-15.) Consequently, plaintiff filed a separate action for wrongful termination in state court naming Bantek and Pendum as defendants. Pendum removed that action to federal court on November 12, 2008, based on diversity jurisdiction, 28 U.S.C. § 1332(a). See Evans v. Bantek West, Inc., No. 08-2719 (E.D. Cal.) ("wrongful termination action").

Shortly thereafter, on December 4, 2008, Pendum also removed the original case to federal court (now the present action), again based on diversity jurisdiction, 28 U.S.C. § 1332(a).*fn2 (Notice of Removal 2:18-19.) Pendum subsequently filed a notice of related cases on December 29, 2008, notifying the court and parties of the related nature of this case and the wrongful termination action. Plaintiff then moved to remand this action on December 31, 2008, but incorrectly filed his motion in the wrongful termination action. (Oliver Decl. ¶ 4.) Pendum filed an opposition to that motion on January 16, 2009. (Id. ¶ 5.) After realizing the mistake, plaintiff sought to terminate that motion and filed the instant motion to remand on January 20, 2009. (See id. ¶¶ 5-6.)

II. Discussion

A. Timeliness of Plaintiff's Motion to Remand

A motion to remand that is based on any defect other than lack of subject matter jurisdiction must be made within thirty days after the filing of the notice of removal. 28 U.S.C. § 1447(c); accord N. Cal. Dist. Council of Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1038 (9th Cir. 1995) (requiring that "a defect in removal procedure be raised in the district court within 30 days after the filing of the notice of removal"). Here, plaintiff does not challenge the court's subject matter jurisdiction, but rather moves to remand because Pendum's notice of removal purportedly failed to comply with the time limits imposed by 28 U.S.C. § 1446(b). (Mot. Remand 1:3-12.) Since "untimely removal is a procedural rather than a jurisdictional defect," Maniar v. F.D.I.C., 979 F.2d 782, 785 (9th Cir. 1992), plaintiff's motion to remand must satisfy the thirty-day filing deadline of § 1447(c).

Pendum filed its notice of removal on December 4, 2008. (Docket No. 1.) The instant motion to remand was not filed in this case until January 20, 2009 (Docket No. 13), more than thirty days thereafter. However, plaintiff did file a timely motion to remand on December 31, 2008, but incorrectly filed it in the wrong case. (Oliver Decl. ¶ 4.) That motion was clearly intended to be filed in the instant action, though, as the dates of the pleadings and notice of removal specified therein correspond to the dates in this case, not the wrongful termination action.

Although § 1447(c)'s thirty-day time limit for motions to remand "is plainly mandatory," the failure to file a "defect-free motion within the thirty-day deadline" does not necessarily render a motion untimely. Bilbruck v. BNSF Ry. Co., 243 F. App'x 293, 295 (9th Cir. 2007); accord Phoenix Global Ventures, LLC v. Phoenix Hotel Assocs., Ltd., 422 F.3d 72, 75 (2d Cir. 2005) (per curiam). For example, courts have held that a district court may consider the merits of a motion to remand when the motion would have been timely but for technical noncompliance with a local rule or the requirements of an Electronic Case Filing ("ECF") system and the defendant would not suffer prejudice therefrom. See Bilbruck, 243 F. App'x at 295 (holding that "the district court properly exercised its discretion" when it found that the plaintiff's "technical noncompliance" with a local rule "did not render his motion to remand untimely"); Phoenix Global Ventures, LLC, 422 F.3d at 76 (recognizing a "district court's authority" to excuse an attorney's "failure to comply with the ECF system requirements and thus deem the motion [to remand] made at the time when, but for this noncompliance, the motion would have been made").

More directly on point, a motion to remand may also be considered timely when, as here, a plaintiff inadvertently files the motion in a different but related case. See Tanoh v. AMVAC Chem. Corp., No. 06-7038, 2008 WL 4691004, at *2 (C.D. Cal. Oct. 21, 2008) (treating a motion to remand accidentally filed in a related case between the parties as if it had been filed in the proper case for the purposes of assessing the timeliness and validity of the motion); cf. Farzana K. v. Ind. Dep't of Educ., 473 F.3d 703, 707 (7th Cir. 2007) (providing that a complaint is timely filed even though a plaintiff "writ[es] the wrong docket number on top of the papers").

The purpose of § 1447(c)'s thirty-day time limit for motions to remand "is 'to resolve the choice of forum at the early stages of litigation,' and to 'prevent the "shuffling [of] cases between state and federal courts after the first thirty days."'" Pittsburg-Des Moines Steel Co., 69 F.3d at 1038 (quoting Maniar, 979 F.2d at 782, 786) (alterations in original); see Pierpoint v. Barnes, 94 F.3d 813, 818 (2d Cir. 1996) (explaining that the purpose of the thirty-day limit is "to avoid late-game forum shopping by plaintiffs"). That purpose is not seriously offended by excusing the late filing of the instant motion. This case is still in its early stages in federal court, as the parties have not yet filed status reports to plan for discovery. Further, Pendum has not identified any prejudice arising from the delay in its receipt of a defect-free motion to remand.

Plaintiff's erroneous filing in the wrongful termination action followed by the filing of the instant motion thus adequately "raised [a defect in the removal procedure] in the district court within 30 days after the filing of the notice of removal." N. Cal. Dist. Council of Laborers, 69 F.3d at 1038. Accordingly, the court will excuse plaintiff's ...

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