The opinion of the court was delivered by: Justin L. Quackenbush Senior United States District Judge
ORDER RE: MOTION TO REMAND
BEFORE THE COURT is Plaintiffs' Motion to Remand (ECF No. 9) seeking to remand the action to state court and arguing that this court lacks subject matter jurisdiction and that the removal was procedurally defective. Defendants have filed a Response (ECF No. 11).The parties were heard in court on July 16, 2012. Aletheia Gooden appeared on behalf of Plaintiffs. William Pohle, Jr. appeared for Defendants Union Pacific, Bertrand Williams, and Lewis Hawkins. Michael Sabongui was present for Defendant City of Ontario.
This action was filed in the Superior Court of San Bernardino County on January 19, 2012. The Plaintiffs are the husband and three surviving children of decedent, Stacy Hurtado. Mrs. Hurtado was killed in a train and automobile collision accident on December 16, 2010. Plaintiffs instituted this action against Union Pacific Railroad, two of its employees individually, and the City of Ontario. The Complaint and First Amended Complaint are appended to the Notice of Removal (at ECF No. 1). The First Amended Complaint contains three enumerated claims: 1) Negligence, 2) Violation of Public Utility Code § 2106, and 3) Wrongful Death.
Defendant Union Pacific Railroad ("Union Pacific") was served on February 17, 2012, with the Complaint, and received the First Amended Complaint on February 29, 2012. (ECF No. 1, p. 2). Union Pacific contends that it was only upon receipt of the First Amended Complaint that it was able to discern that the claims were removable. Union Pacific contends that the First Amended Complaint presents claims that arise under the Federal Railroad Safety Act ("FRSA"), 49 U.S.C. § 20103. The Notice of Removal was filed in this court on May 7, 2012.
On May 31, 2012, this court issued an Order to Show Cause (ECF No. 8) raising concerns with the timeliness of removal and the basis for federal question jurisdiction. On June 6, 2012, Plaintiffs timely filed a Motion to Remand asserting that the FRSA does not create federal subject-matter jurisdiction and asserting two procedural defects with removal: 1) timeliness, and 2) failure to comply with the rule of unanimity in that Defendant City of Ontario did not consent to removal.
As Plaintiffs have timely asserted the procedural defects within 30 days as required by 28 U.S.C. § 1447(c), if Plaintiffs are correct as to any one of their three arguments, then this matter must be remanded. The court has begun its analysis with the procedural arguments.
A. Unanimous Consent of Defendants
Federal courts have long observed the 'rule of unanimity', requiring the unanimous consent of all defendants for the removal of an action. That requirement is now embodied in the removal statutes: "When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action." 28 U.S.C. § 1446(b)(2)(A). The Ninth Circuit has recognized the lack of defendant unanimity as a defect under 28 U.S.C. 1447(c) and held that district court orders remanding for lack of unanimity are not reviewable on appeal. See Atlantic Nat. Trust v. Mt. Hawley Ins. Co., 621 F.3d 931 (9th Cir. 2010).
The Notice of Removal herein states that: "All Defendants have joined in and consent to removal to this Court." (ECF No. 1, p. 2). The Notice of Removal is signed by counsel for Union Pacific, Bertrand Williams, and Lewis Hawkins. It is not signed by counsel for Defendant City of Ontario ("City"). In the Motion to Remand, counsel for Plaintiffs avers that he spoke with counsel for the City, Mr. Sabongui, who advised the City took no position on removal. Plaintiffs attached an e-mail from Mr. Sabongui dated May 17, 2012, wherein he states: "We did not join or consent to the petition." (ECF 9-1, p. 42).
However, also of record is an e-mail from counsel for Union Pacific dated March 19, 2012, to Mr. Sabongui which states:
We are removing this suit to federal court. Given our discussion, I understand you are in agreement. We will serve you with our papers. (ECF No. 12, p. 5). Mr. Sabongui replied: "Ok thanks." (Id.).
At this point, counsel for Union Pacific could have believed that he had the consent of the City. Counsel apparently had a conversation concerning removal, and counsel for Union Pacific sent the foregoing e-mail to Mr. Sabongui. This response is ambiguous. It could have referred to the removal or it could have referred to the "We will serve you with our papers," portion of that e-mail. However, the City has now filed its official position on the issue. See ECF No. 12, Declaration of Michael Sabongui. He states that the City has filed an Answer to the Complaint in state court. He confirms that he and counsel for Union Pacific had a telephone conversation on March 19, 2012. He states, in part, regarding this conversation:
I understood that [Union Pacific] would seek to remove the case, and I therefore requested to be placed on the proof of service and be served with all papers. I had advised that the City of Ontario could not take a position, either in support of, or in opposition to, a removal to Federal Court. (ECF No. 12, ¶ 5). He states that his response of "ok" was in regard to the statement, "we will serve you with our papers." He further states: "The City of Ontario, as a defendant in this case, maintains that it does not join, oppose or "consent" to the removal of this case to Federal Court. The City of Ontario does not take any position on removal." (ECF No. 12, ¶ 6).
It is unclear why the City continues to state that it takes a non-position. The City does have a position--it does not consent to the removal. Counsel for all parties in this action are well aware that the consent of all defendants is necessary for removal. Therefore, when the City says it advised it took no position, this rather unnecessarily muddied the waters. The City was actually refusing to join in or consent to removal, and was therefore ...