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Sharon Renee Hill v. Kohl's

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 13, 2011

SHARON RENEE HILL, PLAINTIFF,
v.
KOHL'S DEPARTMENT STORES, INC.,
DEFENDANT.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER REGARDING DEFENDANT'S REMOVAL NOTICE AND ITS EFFECT ORDER CONTINUING INITIAL SCHEDULING CONFERENCE TO JUNE 14, 2011 at 10:00 a.m.

On May 12, 2011, this Court received written correspondence from Plaintiff Sharon Renee Hill. ( See Doc. 6.) It appears Plaintiff may be confused with regard to the status of the state court action, following Defendant Kohl's Department Stores, Inc.'s removal to this Court, and whether any appearance is necessary in this Court. To ensure Plaintiff understands her obligations to this Court, the following information is provided. *fn1 Additionally, in light of a procedural defect, Defendant is provided one week within which it may amend its pleading.

DISCUSSION

On March 11, 2011, Defendant filed a Notice of Removal of Action Under 28 U.S.C. § 1441(b). (Doc. 1.) Typically, such a filing would effectively close and conclude the state court action, and all further proceedings would occur in this Court. However, upon receipt of Plaintiff's correspondence, this Court reviewed its docket, and more particularly, Defendant's removal notice. The Court also consulted the Fresno County Superior Court's website regarding its case number 09CECG00689DSB. *fn2

Following review, this Court finds Defendant's Notice of Removal is procedurally defective. Title 28 of the United States Code section 1446(d) provides that:

Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded . (Emphasis added.) In this case, Defendant failed to file a copy of its notice with the Fresno County Superior Court clerk. The proof of service attached to its Notice of Removal indicates that only Plaintiff herself was served. ( See Doc. 1 at 3-4.) Additionally, the state court's website provides a docket report for case number 09CECG00689DSB which reveals the last action occurred on July 30, 2010. Further, the case is not closed, nor is there any indication the state court is aware of the proceedings here in Federal court. ( See http://banweb.co.fresno.ca.us.)

Accordingly, Defendant may file an amended removal notice no later than 1:00 p.m. on Friday, May 20, 2011. Defendant shall ensure that its amended notice of removal is in fact served upon the clerk of the state court. *fn3

Notwithstanding the above, and assuming Defendant will correct the procedural defect identified herein, Plaintiff is advised that her matter will now be litigated in this Court, rather than in the Fresno County Superior Court. Thus, Plaintiff will no longer be required to appear in the state court, and all dates and deadlines previously set in that court are no longer of consequence. This Court will set its own dates and deadlines at its Initial Scheduling Conference.

Related thereto, the Initial Scheduling Conference previously scheduled for Tuesday, May 24, 2011, at 9:00 a.m. in hereby CONTINUED to Tuesday, June 14, 2011, at 10:00 a.m. in Courtroom 10 before the undersigned.

IT IS SO ORDERED.

i70h38


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