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Mohamad Harb, et al. v. City of Bakersfield

February 14, 2011

MOHAMAD HARB, ET AL.
PLAINTIFFS,
v.
CITY OF BAKERSFIELD, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Dennis L. United States Magistrate Judge

(Document 21)

ORDER GRANTING PLAINTIFFS' MOTION TO REMAND ACTION AND RELATED CROSS-ACTIONS

Plaintiffs Mohamad Harb aka Mohamed Harb, an individual by and through his conservator Fatema Zagloul, and Fatema Harb, an individual and as conservator for Mohamed Harb ("Plaintiffs"), filed the instant motion to remand this action to the Kern County Superior Court on January 11, 2011. The motion was heard on February 11, 2011, before the Honorable Dennis L. Beck, United States Magistrate Judge. Steven Gibbs appeared on behalf of Plaintiffs. Michael Lehman appeared on behalf of Defendants City of Bakersfield, Bakersfield Police Department and Claudia Payne.

BACKGROUND

Plaintiffs filed the underlying action in Kern County Superior Court on December 12, 2008. Following motion and discovery practice in state court, Plaintiffs believed there was sufficient evidence to support several potential civil rights violations by the Bakersfield Police Department.

On June 15, 2010, approximately two months before their trial date, Plaintiffs filed a motion in state court seeking leave to amend their complaint to add a cause of action for civil rights violations pursuant to 42 U.S.C. §§ 1981, 1983 and 1985. On July 15, 2010, the state court granted Plaintiffs leave to file a second amended complaint. However, before Plaintiffs filed their second amended complaint, Defendant City of Bakersfield, Bakersfield Police Department and Claudia Payne ("Bakersfield Defendants") removed the action to this Court on August 4, 2010.

Following removal, Plaintiffs determined that they would not amend to allege their claim for civil rights violations. In October 2010, Plaintiffs contacted defense counsel and offered to forgo adding the civil rights violations in exchange for a stipulation to remand. Defense counsel rejected the offer.

On December 1, 2010, the parties participated in a scheduling conference. Because the matter remained in federal court without an operative complaint, the parties agreed to stipulate to the filing of a complaint. On December 23, 2010, pursuant to the parties' stipulation, the Court ordered Plaintiffs to file an initial complaint within twenty (20) days.

On January 11, 2011, Plaintiffs filed a complaint asserting three causes of action: (1) negligence of a public employee (Cal. Gov't Code § 844.6); (2) failure to summon medical aid for prisoner (Cal. Gov't Code § 845.6); and (3) professional negligence. Plaintiffs contemporaneously filed their motion to remand. Plaintiffs contend that removal was premature because there was no operative complaint filed in the state court action that indicated federal subject matter jurisdiction on its face. Plaintiffs further contend that the current complaint contains no grounds for federal court jurisdiction and remand is warranted.

Bakersfield Defendants filed an objection to Plaintiffs' motion on January 25, 2011. Plaintiffs did not file a reply.

On February 10, 2011, Bakersfield Defendants filed a motion to dismiss, arguing that Plaintiffs are using remand as a forum selection device. On the same date, Defendants Hall Ambulance Service, Inc., Brian Dumont, Lori Thomas and Darcy Smith filed a motion to dismiss for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1).

DISCUSSION

A. Legal Standard - Removal Jurisdiction

By statute "any civil action brought in a State court of which the ...


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