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Bruce Koklich v. California Department of Corrections

February 27, 2012

BRUCE KOKLICH,
PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, ET AL.,
DEFENDANTS.



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

ORDER DISREGARDING DEFENDANTS' MOTION FOR WRIT OF CERTIORARI TO FRESNO COUNTY SUPERIOR COURT (DOC. 26) ORDER DISREGARDING PLAINTIFF'S MOTION FOR JUDICIAL NOTICE (DOC.

ORDER DENYING PLAINTIFF'S MOTION

FOR REMAND (DOC. 22)

ORDER GRANTING DEFENDANTS' MOTION FOR SCREENING PURSUANT TO 28 U.S.C. § 1915A (DOC. 15)

I. Background

Plaintiff Bruce Koklich ("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. This action is proceeding against Defendants CDCR, James A. Yates, P. Mendoza, McCoy, J. Ward, A. Walker, J. Babcock, Igbinosa, G. Kalisher, and J. Clark Kelso. Defendant P. Mendoza removed this action from Fresno County Superior Court on August 18, 2011. Notice of Removal, Doc. 1.*fn1 Other Defendants subsequently joined this action. On August 25, 2011, Defendants Mendoza, Babcock, Walker, Ward, CDCR, Igbinosa, Kalisher, and Yates filed a motion requesting that the Court screen Plaintiff's complaint pursuant to 28 U.S.C. § 1915A. Doc. 15.

On September 15, 2011, Plaintiff filed a motion to remand the action to Fresno County Superior Court. Doc. 22. Plaintiff also filed a motion for judicial notice on September 15, 2011. Doc. 23. On September 23, 2011, Defendants, with the exception of Defendant J. Clark Kelso, filed an opposition. Doc. 25. Defendants also filed a motion that the Court issue a writ of certiorari to the Fresno County Superior Court in order to obtain the case record in this action. Doc. 26. On October 11, 2011, Plaintiff filed his reply to Defendants' opposition. On October 18, 2011, the Court ordered Defendants to file supplemental briefing relating to Plaintiff's motion. On December 6, 2011, Defendant J. Clark Kelso filed a response. Doc. 35. On December 9, 2011, the other Defendants filed their response. Doc. 36. Plaintiff filed a reply to both on January 3, 2012. Doc. 37.

The Court has considered all the relevant filings, and the matter is submitted pursuant to Local Rule 230(l). The Court will first address Plaintiff's motion to remand.

II. Plaintiff's Motion To Remand

Plaintiff requests that the Court remand the case to Fresno County Superior Court. Pl.'s Mot. 1-2, Doc. 22. Plaintiff contends that Defendant Mendoza's notice of removal was deficient because 1) Defendants' notice failed to include the state court pleadings; 2) the notice of removal does not explain why proper consent was not obtained as to the other Defendants; 3) Defendants made a substantial defensive action in state court, thus demonstrating their intent to remain in state court. Id. at 2-5.

Pursuant to 28 U.S.C. § 1441(a), removal is appropriate for "any civil action brought in a State court of which the district courts of the United States have original jurisdiction. . . ." Removal statutes are strictly construed. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). "The burden of establishing federal jurisdiction falls on the party invoking removal." Harris v. Provident Life and Accident Ins. Co., 26 F.3d 930, 932 (9th Cir. 1994) (quoting Gould v. Mut. Life Ins. Co. of New York, 790 F.2d 769, 771 (9th Cir. 1986)). Removal is proper where a plaintiff's complaint, on its face, asserts claims created by federal law or where a substantial federal issue of law exists. Merrell Dow Pharm. v. Thompson, 478 U.S. 804, 808-10 (1986). This court has original jurisdiction over actions brought pursuant to 42 U.S.C. § 1983. See 28 U.S.C. § 1331.

As a general rule, all defendants in the state court action must join in the petition for removal. United Computer Sys., Inc. v. AT&T Corp., 298 F.3d 756, 762 (9th Cir. 2002). Although there are certain exceptions to this rule of unanimity, "[w]here fewer than all the defendants have joined in a removal action, the removing party has the burden under section 1446(a) to explain affirmatively the absence of any co-defendants in the notice for removal." Prize Frize v. Matrix (U.S.) Inc., 167 F.3d 1261, 1266 (9th Cir. 1999), superseded by statute on other grounds as recognized in Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 681 (9th Cir. 2006) (class action) (citations omitted); cf., Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n.1 (9th Cir. 1988) (noting that nominal, unknown, fraudulently joined, or improperly served defendants need not join in a petition for removal).

Furthermore, 28 U.S.C. ยง 1446(b) requires that the notice of removal 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 ...


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