APPEAL from a judgment of the Superior Court for Los Angeles County, Deanne Smith Myers, Judge. Reversed. (Los Angeles County Super. Ct. No. NC035639).
The opinion of the court was delivered by: Willhite, Acting P. J.
CERTIFIED FOR PUBLICATION
This appeal comes to us after an action was dismissed under Code of Civil Procedure sections 583.410 (hereafter, section 583.410) and 583.420 (hereafter, section 583.420) for failure to bring the matter to trial within three years of commencement of the action. The case presents an issue of federal law about which the federal courts, as well as state courts that have examined the issue, conflict. That issue concerns when a state court reassumes jurisdiction over a matter that has been removed to federal court and then remanded under Title 28, section 1447 of the United States Code (hereafter, section 1447). Based upon the language and history of section 1447, we hold that jurisdiction is not transferred back to the state court until the clerk of the federal district court mails a certified copy of the order of remand to the clerk of the Superior Court.
Having concluded that the Superior Court did not have jurisdiction over the matter during the period from the removal of the action to federal court until the district court clerk mailed a certified copy of the remand order to the Superior Court clerk, we next address an issue of state law. We must determine whether that time period must be excluded when determining if the action may be dismissed under section 583.420, regardless of the plaintiffs‟ diligence, or lack thereof, to ensure that the district court clerk mails the certified remand order to the Superior Court clerk. Once again, we are bound by the language of the relevant statute, in this instance Code of Civil Procedure section 583.340 (section 583.340). That statute provides, without qualification, that the time during which the jurisdiction of the trial court was suspended "shall be excluded" when computing the time within which an action must be brought to trial. Therefore, we hold that the trial court erred by dismissing this matter for delay in prosecution, because the court‟s jurisdiction was suspended for all but seven months of the period between the filing of the complaint and entry of the dismissal order.
Plaintiffs -- a foreign air carrier and several insurers*fn1 -- filed this action on May 10, 2004, alleging causes of action against numerous defendants for product liability, strict liability, and equitable indemnity arising out of an incident in which the landing gear on an aircraft collapsed upon landing in 2001. Two of the defendants, McDonnell Douglas Corporation (MDC) and The Boeing Company (Boeing) filed a notice of removal in federal court on August 6, 2004. All of the defendants who had been served at that time -- Goodrich Corporation; Lockheed Martin Corporation; Honeywell International, Inc.; and K&F Industries -- filed joinders to the notice of removal. MDC and Boeing filed copies of the notice of removal and joinders in the state court on August 9, 2004.
Plaintiffs moved in federal court to remand the action back to state court on August 18, 2004. The federal district court granted plaintiffs‟ motion on December 3, 2004, and its order was entered on December 7, 2004. Apparently, the district court clerk neglected to send a certified copy of the remand order to the Superior Court clerk.
Although some of the parties engaged in minimal discovery shortly after the remand order was filed in federal court, no notice of the remand was given to the Superior Court until September 5, 2007,*fn2 when plaintiffs made an ex parte application for an order re-setting the action on the court‟s active docket and setting a case management conference. At the hearing on the ex parte application, plaintiffs‟ attorney explained that the case had been "in limbo" for more than two years due to the district court clerk‟s failure to send a certified copy of the remand order, and he was not certain what needed to be done to reactivate the case in state court. The trial court denied the ex parte application on the ground that plaintiffs had not shown good cause as to why the matter should be heard on an ex parte basis.
After the hearing, plaintiffs‟ counsel called the district court clerk to inquire about the status of the case. This call apparently prompted the clerk to send a certified copy of the remand order to the Superior Court, which received it on September 14, 2007. On October 26, 2007, all of the served defendants (which then also included Aircraft Braking Systems Corporation) filed a joint motion to dismiss the action under sections 583.410 and 583.420.
In their joint motion, defendants argued that the state court reassumed jurisdiction over the action as soon as the remand order was entered by the district court in December 2004, and that dismissal was appropriate because plaintiffs had not exercised reasonable diligence in bringing their action to trial in the almost three years that had passed since the remand. In opposition to the motion, plaintiffs noted that a majority of federal courts that have considered the question of when jurisdiction is transferred back to the state court upon remand have held that jurisdiction is transferred only when the district court clerk mails a certified copy of the remand order to the state court clerk. Therefore, plaintiffs contended that the state court‟s jurisdiction over the present action was suspended for all but a few months since the filing of the complaint, and dismissal for failure to prosecute would be improper.
The trial court granted defendants‟ joint motion. The court noted the split of federal authorities regarding the jurisdiction issue, and found the reasoning of one of the minority view cases, Van Ryn v. Korean Air Lines (C.D. Cal. 1985) 640 F.Supp. 284 (Van Ryn), to be "most germane to this case." In that case, the district court held it was divested of jurisdiction upon entry of the order of remand because ""substance should prevail over form,‟" and "the action of a court (entering an order of remand) rather than the action of a clerk (mailing a certified copy of the order) . . . should determine the vesting of jurisdiction." (Id. at p. 285.) Applying that holding to the present case, the court concluded that jurisdiction was returned to it upon entry of the district court‟s order in December 2004, and therefore more than three years had elapsed since the filing of the case. The court then considered several factors, including plaintiffs‟ diligence, in determining whether to exercise its discretion to dismiss the action under sections 583.410 and 583.420. Finding that plaintiffs did nothing in three years to pursue their case, the court dismissed the case with prejudice.
Plaintiffs appeal from the order dismissing their action.
Section 583.410, subdivision (a) provides that a "court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case." There are limits, however, to the court‟s discretion to dismiss for delay in prosecution. Under section 583.420, subdivision (a), the court may not dismiss an action under section 583.410 unless one of several conditions has occurred. The condition at issue in the present ...