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Justin J. Lerma v. Jon Lee Arends

June 22, 2011


The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge



Plaintiff, Justin J. Lerma,*fn1 seeks reconsideration of the Order (ECF No. 26) denying Plaintiff's Motion for Remand in this employment discrimination and wrongful termination action. Plaintiff asserted in the Motion that Defendant URS Federal Support Services' Notice of Removal was untimely and therefore improper. For the reasons discussed below, this Court DENIES the Request for Reconsideration and to set aside remand.


A. Procedural History Regarding Service of Complaint

On December 21, 2010, Plaintiff filed his Complaint against defendant Arends and URS Corporation in Fresno County Superior Court alleging defamation, racial discrimination under the Fair Employment and Housing Act ("FEHA") and other claims, including intentional infliction of emotional distress. On January 10, 2011, URS Corporation was personally served with the summons and Complaint; Arends was served on January 16.

On February 4, 2011, defense counsel informed Plaintiff that URS Corporation was improperly named and served and that the proper defendant was URS Federal Support Services ("URS FSS"). Defense counsel also informed Plaintiff's counsel that she intended to remove the case to Federal Court based upon diversity jurisdiction once the correct corporate entity was joined. The parties stipulated to provide Defendants until February 24, 2011, to file a responsive pleading. On February 23, 2011, after further discussions, Plaintiff's counsel voluntarily amended the state court action to substitute URS FSS for URS Corporation as the proper corporate Defendant. He did so, in part, in return for Defense counsel's agreement to accept service on behalf of the Defendants. On that same date Plaintiff's counsel sent a copy of the Amended Complaint by mail to defense counsel and provided a courtesy copy by e-mail. However, no amended summons or notice of acknowledgment of receipt accompanied the mailing of the Amended Complaint.

On March 16, 2011, at Defendants' request, Plaintiff's counsel mailed an Acknowledgment of Receipt of Summons form to defense counsel. Defense counsel signed and returned it, and on March 21, 2011, Plaintiff filed it with the California Superior Court. Defendant URS FSS responded to the Amended Complaint on March 29, 2011, with an Answer and a Notice of Removal. On April 25, 2011, Plaintiff filed the instant Motion to Remand.

B. Removal

Defendant URS FSS removed the matter based on diversity jurisdiction under 28 U.S.C. § 1332(a)(1). Plaintiff challenged the timeliness of removal under 28 U.S.C. § 1446(b), not the diversity basis for it. Specifically, Plaintiff alleged that February 23, 2011, the date Plaintiff filed and sent to Defendant's counsel the Amended Complaint, started the time within which removal could be sought, and therefore that the Notice of Removal filed on March 29, 2011, 34 days later, was four days too late. In response, URS FSS argued that the time for calculating removal did not start to run until at least March 16, 2011, when the Notice and Acknowledgment of Receipt were received, signed and returned, and therefore that the March 29, 2011 removal was timely.

At hearing, Magistrate Judge Michael J. Seng denied the Motion to Remand. Judge Seng relied on the reasoning of Murphy Bros., Inc. v Michetti Pipe Stringing, Inc., 526 U.S. 344, 356 (1999), and held the thirty day period to remove the matter did not begin to run until URS FSS was formally served with the Amended Complaint, regardless of the fact that URS FSS was provided a copy of the Amended Complaint before it was served. See Murphy Bros., Inc., 526 U.S. at 347 ("[A] defendant is not obliged to engage in litigation unless notified of the action, and brought under a court's authority, by formal process."). Judge Seng further held that in California a party is brought within the court's jurisdiction by proper service of process in accordance with the provisions of the California Code of Civil Procedure. Accordingly, in a case involving service by mail, service is not effective until a Notice of Acknowledgment of receipt is signed. As this did not occur until March 16, 2011, and the Notice of Removal was filed on March 29, 2011, Judge Seng found the notice timely and denied the Motion for Remand.


A. Ability of a Magistrate Judge to Decide a Motion for Remand

"The Federal Magistrates Act, 28 U.S.C. §§ 631-39, governs the jurisdiction and authority of federal magistrates." United States v. Reyna-Tapia, 328 F.3d 1114, 1118 (9th Cir. 2003) (en banc). The Act allows the district court to assign Magistrate Judges certain enumerated duties, as well as any "additional duties as are not inconsistent with the Constitution and laws of the United States." 28 U.S.C. § 636(b)(3). Local Rule 302(a) provides that Magistrate Judges may perform all duties permitted by 28 U.S.C. § 636(a), (b)(1)(A), or other law where the standard of review of the Magistrate Judge's decision is clearly erroneous or contrary to law. Local Rule 302(a) also provides that, while specific duties are enumerated in Local Rule 302 subsections (b) and (c), "those described duties are not to be considered a limitation of this general grant." Further, Local Rule 302(d) looks ...

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