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Armando Abreu v. K. Englert

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 24, 2011

ARMANDO ABREU,
PLAINTIFF,
v.
K. ENGLERT, ET AL.,
DEFENDANTS.

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

ORDER REQUIRING DEFENDANTS TO RESPOND TO PLAINTIFF'S MOTION TO REMAND

(DOCS. 4, 5, 10)

RESPONSE DUE WITHIN EIGHTEEN DAYS

Plaintiff Armando Abreu ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint in Kings County Superior Court on June 3, 2010. Notice of Removal, Attach. 1, Doc. 1. On August 30, 2010, Defendants A. Reyes, K. Morris, K. Englert, and Anthony Enenmoh ("Defendants") filed a notice of removal. Id. Pending before the Court is Plaintiff's motion to remand, filed September 14, 2010. Doc. 4. Also pending is Plaintiff's motion for entry of default. Doc. 5. Plaintiff also filed a motion for judicial notice on September 30, 2010. Doc. 10. Plaintiff submits proofs of service from the Sheriff's Department.

Plaintiff contends that Defendants did not timely remove this action. Defendants have not filed an opposition or any response to Plaintiff's motions.

A defendant may remove a state civil action to federal court if the action could have been brought in federal court initially. 28 U.S.C. § 1441. Pursuant to 28 U.S.C. § 1446(b), The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

"[T]he [§ 1446(b)] time limit is mandatory and a timely objection to a late petition will defeat removal." Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir. 1980). Plaintiff's objection is timely. 28 U.S.C. § 1447(c).

Accordingly, it is HEREBY ORDERED that Defendants are to respond to Plaintiff's motion to remand within eighteen days from the date of service of this order. Failure to respond or otherwise comply with this order may be construed as waiver of opposition.

IT IS SO ORDERED.

3b142a

20110324

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