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Jon-Cory Schmidt v. County of Nevada; Nevada County Sheriff's Office; James Bennett

February 7, 2011

JON-CORY SCHMIDT PLAINTIFFS,
v.
COUNTY OF NEVADA; NEVADA COUNTY SHERIFF'S OFFICE; JAMES BENNETT, DEFENDANTS.



MEMORANDUM AND ORDER

This matter is before the court on plaintiff Jon-Cory Schmidt's ("plaintiff") motion to remand to the California Superior Court for the County of Nevada, and for costs and attorneys fees.*fn1 Defendants County of Nevada ("Nevada County"), Nevada County Sheriff's Office ("Sheriff's Office"), and James Bennet ("Bennett") (collectively, "defendants") oppose the motion. For the reasons set forth below,*fn2 plaintiff's motion to remand is DENIED.

BACKGROUND

On October 12, 2010, plaintiff filed a complaint in California Superior Court, Nevada County, for (1) unlawful detention of personal property (2) declaratory relief (3) violation of equal protection rights (4) deprivation of constitutional rights pursuant to 42 U.S.C. § 1983 and (5) conversion of personal property against defendants. (Pl.'s Compl. ["Compl."], filed Oct. 12, 2010, [Docket #1], Ex. A.) Plaintiff personally served the complaint on Nevada County and the Sheriff's Office on October 15, 2010. (Def.'s Opp'n to Mot. to Remand ["Opp'n"], filed Jan. 14, 2011, [Docket #16], at 4:13--14.) Nevada County and the Sheriff's Office then timely removed the action to the court on November 8, 2010, on the basis that plaintiff's complaint raised a federal question. (Def.'s Not. of Removal ["NOR"], filed Nov. 8, 2010, [Docket #1].) On November 30, 2010, Bennett executed a waiver of service. (Waiver of Service, filed Dec. 7, 2010, [Docket #12].) Bennet subsequently filed a joinder in the notice of removal on December 21, 2010. (Def.'s Joinder in Not. of Removal, filed Dec. 21, 2010, [Docket #13].)

In the underlying complaint, plaintiff alleges that defendants violated his constitutional rights by depriving him, without due process of law, of eighty immature marijuana plants that plaintiff asserts he lawfully possessed pursuant to California's Compassionate Use Act. (Compl. ¶¶ 10--16.) Plaintiff contends that defendants "have illegally seized such medical marijuana through unlawful seizure, confiscation, and impoundment." (Compl. ¶ 22.) Finally, plaintiff alleges defendants "made unreasonable and illegal searches and seizures . . . and deprived plaintiff of his rights, privileges, and immunities as guarantied by the Fourth and Fourteenth Amendments to the United States Constitution." (Compl. ¶ 11.) On December 3, 2010, plaintiff filed a notice of motion to remand to California Superior Court, Nevada County. (Pl.'s Mot. Remand, filed Dec. 3rd, 2010, [Docket # 11].)

STANDARD

Federal district courts have original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. "[A]ny civil action brought in State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court" in which the action is pending. 28 U.S.C. § 1441(a). A civil case may be removed to federal court when the district court has original federal question jurisdiction. Id. § 1441(b).

The party invoking removal bears the burden of establishing federal jurisdiction. See Harris v. Provident Life and Acc. Ins. Co., 26 F.3d 930, 932 (9th Cir. 1994) (quoting Gould v. Mutual Life Ins. Co., 790 F.2d 769, 771 (9th Cir. 1986)). Removal is proper where plaintiff's complaint, on its face, asserts claims created by federal law or where a substantial federal issue of law exists. Merrell Dow Pharm. v. Thompson, 478 U.S. 804, 808-10 (1986).

ANALYSIS

Plaintiffs complaint expressly asserts federal claims brought pursuant to 42 U.S.C. § 1983 for violation of the Fourth and Fourteenth Amendments. (Compl. ¶¶ 12--13, 30--33.) Notwithstanding the federal claims pleaded in the complaint, plaintiff contends that the matter should be remanded to the Superior Court, County of Nevada, because: (1) the notice of removal is defective under 28 U.S.C. § 1446(b) as it is untimely and all named defendants have not joined in the removal; (2) defendants failed to timely file a response to the initial pleading; (3) the court does not have original jurisdiction over the first, second and fourth claims, which predominate over the federal claims; and (4) the court should abstain from exercising jurisdiction under Burford v. Sun Oil Co., 319 U.S. 315 (1943).

A. Timely Removal and Joinder of all Named Defendants

Plaintiff alleges that this matter must be remanded because the notice of removal was untimely and all of the named defendants have not joined the removal. Specifically, plaintiff contends that defendant James Brennan, who was a party to the state court action, has failed to join the removal. (Pl.'s Memorandum in Support of Mot. Remand ["MTR"], filed Jan. 12, 2011, [Docket # 15], at 5:10--12.). Moreover, plaintiff contends that, pursuant to 28 U.S.C. § 1446(b), the matter must be remanded because Bennett failed to join the removal within thirty days after plaintiff originally served the complaint on Nevada County and the Sheriff's Office. (Id. at 5:18--6:8.)

28 U.S.C. § 1446 requires that all defendants join or consent to the notice of removal. Hewitt v. City of Stanton, 798 F.2d 1230, 1233 (9th Cir. 1986). Moreover, the defendant removing a state action to federal court must file the notice of removal within thirty days of receiving "a copy of the initial pleading setting forth the claim for relief upon which [the] action or proceeding is based . . . ." Id. § 1446(b). The Ninth Circuit, along with four others circuits,*fn3 has adopted the "later-served defendant rule." See Destfino v. Reiswig, ___ F.3d ___ 2011 WL 182241, *3 (9th Cir. 2011). Under this rule, each defendant has thirty days to remove a state action to federal court after it is brought into the case, if there is a basis for federal subject matter jurisdiction. Id. at *2. "A contrary rule could deprive some defendants of a right to a federal forum because they were served too late to exercise that right . . . ." Id.

In this case, all defendants timely filed and joined in the notice of removal. First, contrary to plaintiff's contention, Bennet properly joined the notice of removal on December 21, 2010. (Def.'s Joinder Not. of Removal, filed December 21, 2010 [Docket # 13].) Second, both Nevada County and the Sheriff's Office removed the action within 30 days of being served with the complaint. (Opp'n at 4:16--20.) Bennet also joined the notice of removal on December 21, 2010, after executing a waiver of service on November 30, 2010, within the prescribed thirty-day time ...


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