FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF PLAINTIFF'S MOTION TO REMAND ACTION TO STATE COURT (ECF No. 19)
OBJECTIONS DUE WITHIN THIRTY DAYS
Plaintiff Reginald Darrell Miller ("Plaintiff") is a civil detainee
proceeding pro se in this civil rights action pursuant to 42 U.S.C. §
1983. Plaintiff originally filed this action in state court. On July
1, 2011, Defendant Giurbino removed it to federal court.*fn1
(ECF No. 2.) This action proceeds on Plaintiff's Complaint
alleging violations of his Fifth and Fourteenth Amendment rights by
Defendants, among other claims under federal and state law.
No. 2, pp. 7-65)
Pending before the Court now is Plaintiff's Motion to Remand Action to State Court filed July 18, 2011. (ECF No. 19.) Defendants Cate, Giurbino, and Doyle filed their Opposition to the motion on August 5, 2011 and Plaintiff filed his Reply August 18, 2011. (ECF Nos. 30 & 42.)
In his Motion, Plaintiff argues that the removal was untimely, that service of the notice of removal was defective, and that there is no federal question.
Plaintiff argues that this action does not include any federal question which was the basis for removal by Defendants. Plaintiff states that the action could not have originally been filed in federal court because of a "lack of standing and an inability to establish the legal threshold with regards to the RICO Act . . . ." (ECF No. 19, p. 3.) Plaintiff states the he did not raise any federal issues related to either RICO or Section 1983 in his Complaint.
Plaintiff argues that the other Defendants have not joined in or consented to the removal.
Plaintiff argues that Defendant Giurbino's notice of removal was untimely pursuant to the "first-served defendant" rule. Plaintiff states that the first served defendant was Defendant Ahlin who was served on June 1, 2011. Plaintiff argues that the thirty day time frame began that day and then ended on June 30, 2011, which made Defendant Giurbino's removal, filed July 1, 2011, untimely.
Plaintiff argues that the service by Defendants of documents was defective. Plaintiff states that the proof of service states that the notice of removal was served on July 1, 2011. However, he states, the documents were not postmarked until July 5, 2011
In their Opposition, Defendants argue that Plaintiff's allegations are misguided. Specifically, Defendants contend that there are issues of federal law in this action, and Defendants point out that all Defendants have consented to the removal. Defendants highlight sections of Plaintiff's Complaint where he makes claims under the Fifth and Fourteenth Amendments and other federal laws including RICO and a claim for conspiracy.
As to Plaintiff's argument that the removal was not unanimous, Defendants state that that is no longer the case. All Defendants have since joined and consented to ...