The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THIS ACTION BE REMANDED TO STATE COURT AND PLAINTIFF'S MOTION FOR SANCTIONS BE DENIED (Docs. 6, 11, 13) OBJECTIONS DUE WITHIN 30 DAYS
Plaintiff Robert P. Smith, III ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On December 29, 2009, Plaintiff filed a motion requesting that this action be remanded back to state court. (Doc. #6.) Plaintiff argues that remand is proper due to multiple procedural defects that occurred when Defendants sought to remove this case from state court. On February 22, 2010, Plaintiff filed a motion requesting that Defendants be sanctioned for filing a nonsensical opposition to Plaintiff's motion to remand. (Doc. #11.)
A. Plaintiff's Motion to Remand
This action was removed from Kings County Superior Court on November 30, 2009, by Defendant California Department of Corrections and Rehabilitations ("CDCR"). (Doc. #1.) Defendant CDCR filed its notice of removal on November 24, 2009. The notice claims that removal is proper under 28 U.S.C. § 1441(b) because Plaintiff's complaint alleges federal claims under 42 U.S.C. § 1983. Plaintiff requests remand "due to multiple procedural defects in defendants' papers by which they successfully obtained removal of this action from the state court." (Mot. to Remand Case To State Court Based On Multiple Procedural Defects in Defendants' Removal Papers 1:20-22, ECF No. 6.)
Plaintiff complains that the notice of removal was not signed by Defendants' attorney of record on November 24, 2009, because on that date the attorney general was representing Defendants, not Defendants' current counsel, Beeson Terhorst, LLP. Plaintiff complains that the notice of substitution of counsel was not submitted until December 9, 2009. Plaintiff also claims that the notice of removal was not properly served on Plaintiff because it was sent to his old address at Corcoran State Prison, not his new address at Salinas Valley State Prison. Plaintiff complains that there was a delay in the receipt of the notice caused by prison officials who delayed Plaintiff's mail. Plaintiff also contends that Defendants failed to include a "'copy of all process, pleadings, and orders served upon such defendant or defendants in such action per § 1446(a)." (Mot. to Remand 3:14-16, ECF No. 6.)
More significantly, Plaintiff notes that Defendant CDCR failed to obtain the consent of all co-defendants prior to filing its notice of removal. Plaintiff also contends that the notice of removal was untimely because Defendant CDCR was served on May 4, 2009, not in November 2009 as Defendant contended in its notice of removal. Plaintiff argues that the original notice of removal was untimely because it was filed more than 30 days after Defendant was served with Plaintiff's complaint. Plaintiff attached a proof of service to his motion that indicates that an officer from the Sheriff's Office served the CDCR with Plaintiff's complaint and a summons by leaving it with an authorized agent. The proof of service indicates that service occurred on May 5, 2009. Plaintiff admits that the other Defendants in this action were served in November 2009. However, those Defendants did not file a notice of removal.
Defendant CDCR filed an opposition to Plaintiff's motion on January 12, 2010. (Doc. #7.) Defendant's opposition argues that removal was timely because "the notice of removal was filed within thirty days of Defendant Clark's receipt of the initial pleading." (Def. State of California's Et. Al., Opp'n to Mot. to Remand 1:22-23, ECF No. 7.) Defendant Clark is not a party to this action and Defendant CDCR provides no explanation regarding who he or she is, or why his or her receipt of the initial pleading is relevant in determining whether remand is proper. Defendant CDCR further argues that Plaintiff "served his initial pleading on the California Attorney General's Office . . . and not any individual Defendant." (Opp'n 1:24-25, ECF No. 7.) Defendant contends that the Attorney General is not an authorized agent for service of process on any of the individual Defendants and Plaintiff's first attempt at service was improper. Defendant CDCR further claims that after Plaintiff's improper attempt at service, it received an extension of time to file a responsive pleading "until Defendant Clark could be identified, located and provided a copy of the initial pleading."*fn1 (Opp'n 1:27-2:2, ECF No. 7.) The declaration from Michael A. Terhorst, attorney for Defendant CDCR, states that "[t]he Attorney General's Office is not an authorized agent to accept service of process on Defendant Clark, and individual." (Decl. of Michael A. Terhorst in Support of Defendants' Opp'n to Objection to Removal of Action 2:2-3, ECF No. 7.)
Defendant further argues that Beeson Terhorst, LLP, the law firm representing Defendants, received "a request from the CDCR to represent their agency in the Petition for Writ of Mandate filed by inmate Edward Spencer." (Opp'n 2:4-7, ECF No. 7.) It is unclear who "inmate Edward Spencer" is or to what "Petition for Writ of Mandate" Defendant is referring. An attorney from Beeson Terhorst advised CDCR that it would seek removal of "this matter"*fn2 to federal court. The removal notice was filed on November 24, 2009. Defendant contends that the notice of removal "was timely filed within 30 days of the individual defendants' receipt of the initial pleading" because it was received on or about November 24, 2009. (Opp'n 2:12-14, ECF No. 7.)
Plaintiff filed a reply on January 25, 2010. (Doc. #8.) Plaintiff notes that the opposition filed by Defendant CDCR contains numerous typographical errors and references to matters that are not relevant to this action. Plaintiff also argues that Plaintiff's motion clearly establishes that Defendants were served in May, as demonstrated by Exhibit B to Plaintiff's motion and that Defendant CDCR fails to raise any argument that rebuts that fact.
B. Plaintiff's Motion for Sanctions
On February 22, 2010, Plaintiff filed a motion requesting sanctions.*fn3 (Doc. #11.) Plaintiff requests that the Court sanction Defendant CDCR's counsel for filing an opposition to Plaintiff's motion to remand that was "plainly deficient and erroneous." (Pl.'s Mot. that Counsel for Defs. be Sanctioned for Filing the Opp'n and its Supporting Decl. to the Mot. for Remand 3:14-18, ECF No. 11.) Plaintiff claims that Defendant CDCR filed an opposition that asserts "simply bizarre, unquestionable incorrect[sic], in fact, fantastical, justifications for the removal notice." (Mot. that Counsel for Defs. be Sanctioned 4:6-9, ECF No. 11.)
A. Plaintiff's Motion to Remand Should ...