September 11, 2013
RODERICK F. PAUL, Plaintiff,
JOHN CUBIBURU, et al., Defendants.
ORDER PARTIALLY ADOPTING FINDINGS AND RECOMMENDATIONS ECF NO. 26
ANTHONY W. ISHII, Senior District Judge.
On July 23, 2013, the magistrate judge assigned to this action issued a Findings and Recommendations recommending that this action be remanded to state court. (ECF No. 26.) The Findings and Recommendations ("F&R") were served on all parties and contained notice that any objections were to be filed within fourteen (14) days. On August 1, 2013, Defendants Ryan Sweeney, Matt Brown and Excel Livestock, LLC filed objections to the Findings and Recommendations. (ECF No. 31.) On August 5, 2013, Defendant John Cubiburu filed objections. (ECF No. 33.) On August 7, 2013, Plaintiff filed an objection to evidence submitted by Defendants. (ECF No. 34).
Neither Sweeney/Brown/Excel nor Cubiburu object to the portion of the F&R that recommends this action be remanded to state court. However, Sweeney, Brown and Excel object to the Magistrate Judge's recommendation that their request for reimbursement of costs associated with removal be denied. Sweeney, Brown and Excel contend that their request for costs should have been granted because their motion to remand was not untimely. Although the Magistrate Judge found that the Sweeney, Brown and Excel motion to remand was untimely because it was filed more than thirty days after the notice of removal was filed, Sweeney, Brown and Excel contend that they were entitled to additional time because they were not properly served with the notice of removal. These arguments were not presented to the Magistrate Judge at the time the F&R was issued.
Cubiburu objects to the accounting provided by Plaintiff Roderick F. Paul regarding his costs. Cubiburu contends that Plaintiff's evidence in support of his costs are based upon misrepresentations regarding the costs and fees expended to prepare their motion to remand. These arguments were also not presented to the Magistrate Judge at the time the F&R was issued.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, the Court finds that the F&R should be adopted in part. The Court will adopt the recommendation to remand this action. However, because the parties have presented new arguments that were not presented to the Court at the time the F&R was issued, the Court will not adopt the recommendations pertaining to the award of costs in favor of Plaintiff and the denial of Sweeney, Brown and Excel's request for costs. Instead, the Court will retain jurisdiction over the issue of costs, see Moore v. Permanente Med. Grp., Inc. , 981 F.2d 443, 445 (9th Cir. 1992), and refer the matter back to the Magistrate Judge in order to determine whether an award of costs is appropriate with respect to Defendants Ryan Sweeney, Matt Brown and Excel Livestock, LLC and to determine the appropriate amount of costs to award in favor of Plaintiff Roderick F. Paul.
Accordingly, it is HEREBY ORDERED that:
1. The Findings and Recommendations dated July 23, 2013 are ADOPTED IN PART;
2. The motions to remand are PARTIALLY GRANTED (ECF Nos. 8, 14, 19, 23);
3. This action is REMANDED forthwith to the Superior Court of California for the County of San Benito;
4. This action shall remain open for the sole purpose of determining the amount of costs and fees to award in favor of Plaintiff Roderick F. Paul, whether Defendants Ryan Sweeney, Matt Brown and Excel Livestock, LLC's request for costs and fees should be granted and if so, what amount to award;
5. The costs and fees matter is REFERRED back to the Magistrate Judge for further proceedings.
IT IS SO ORDERED.