JASON A. REDON, Plaintiff,
SAN DIEGO COUNTY, CITY OF SAN DIEGO, ANDRES RUIZ, BRANDON JORDAN, DEREK MILLER, SGT BULKOWSKI, SGT D GRUBBS, OFFICER GIBSON, OFFICER POTTIN, OFFICER NATAL, OFFICER JOHN DOES 1-X, WILLIAM LANSDOWNE, JAN GOLDSMITH, MICHAEL LEE FICKEN, MIRIAM MILSTEIN, DIANA DOHERTY, JOHN DOES 2-X, Defendants.
WILLIAM Q. HAYES, District Judge.
The matters before the Court are (1) the motion opposing notice of removal of civil action filed by Plaintiff Jason Redon (ECF No. 4) and (2) the motion to dismiss and motion for a more definite statement filed by Defendant Jan Goldsmith (ECF No. 2).
Plaintiff Redon ("Plaintiff") commenced this action in the San Diego Superior Court alleging state and federal constitutional violations. (ECF No. 1-2 at 1). On August 27, 2012, Plaintiff filed an amended complaint to recover money damages and injunctive relief ("first amended complaint") in the San Diego Superior Court. (ECF No. 1-2 at 2). On January 8, 2013, Plaintiff served the amended complaint and summons on Defendant San Diego Police Department. (ECF No. 1-2 at 12).
On July 5, 2013, Plaintiff served an amended complaint for violation of civil rights and other wrongs ("second amended complaint") on Defendant City Attorney of San Diego. (ECF No. 1-3).
Plaintiff's second amended complaint alleges that "[o]n May 3rd, 2011 and August 19, 2011, the plaintiff was subjected to unnecessary and excessive force by various defendant police officers, including unwarranted, indiscriminate and excessive application of pain compliance holds, carotid restraints and Tasers." Id. at 1. The second amended complaint alleges that "Plaintiff was injured from improper use of force, including but not limited to the use of taser causing chest pain, carotid restraint causing neck plain and pain compliance techniques resulting in permanent ligament damage to finger." Id. The second amended complaint alleges that Defendants "acted pursuant to an official unconstitutional policy of the County of San Diego." Id. at 2. The second amended complaint sets forth the following causes of action against all Defendants: (1) violation of First and Fourteenth Amendments to the United States Constitution under 42 U.S.C. § 1983; (2) violation of Fourth and Fourteenth Amendments to the United States Constitution under 42 U.S.C. § 1983; (3(a)) violation of Fourteenth Amendment to the United States Constitution under 42 U.S.C. § 1983; (3(b)) violation of Eighth Amendment to the United States Constitution under 42 U.S.C. § 1983; (4) denial of California constitutional rights; (5) assault and battery; (6) false arrest and false imprisonment; (7) Cal. Civil Code Section 51.7; (8) Cal. Civil Code Section 52.1; (9) Cal. Civil Code Section 49; (10) Cal. Civil Code 50; (11) intentional infliction of emotional distress; (12) negligence; (13) defamation/slander; (14) abuse of process; and (15) conspiracy. Id. at 5-8.
On July 29, 2013, Defendant Jan Goldsmith, City Attorney of San Diego, ("Defendant Goldsmith") filed notice of removal of civil action in this Court. (ECF No. 1). On August 8, 2013, Defendant Goldsmith filed motion to dismiss and motion for more definite statement. (ECF No. 2). On August 14, 2013, Plaintiff filed motion opposing notice of removal of civil action. (ECF No. 4). On August 28, 2013, Plaintiff filed response opposing motion to dismiss. (ECF No. 6).
Plaintiff's Motion Opposing Notice of Removal
Plaintiff contends that removal of the action is time-barred. Plaintiff asserts that the notice of removal filed on July 29, 2013 is untimely, on the grounds that the 30-day window from the filing of the first amended complaint passed over ten months before the notice of removal was filed. Plaintiff further asserts that his claims under the Unruh Civil Rights Act are non-removable.
Defendant Goldsmith contends that removal of the case was proper under 28 U.S.C. § 1441(a). Defendant Goldsmith asserts that he was served with the second amended complaint on July 9, 2013. Defendant Goldsmith contends that the notice of removal was filed within thirty days of receipt of the second amended complaint and is timely.
A defendant seeking to remove a case from state court to federal court must file a notice of removal within thirty days of receiving "a copy of the initial pleading... or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter." 28 U.S.C. § 1446(b)(1). The removal statute also provides: "If defendants are served at different times, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal even though that earlier-served defendant did not previously initiate or consent to removal." 28 U.S.C. § 1446(b)(2)(c). The Court of Appeals for the Ninth Circuit has adopted the "later-served defendant rule, " which provides that "each defendant is entitled to thirty days to exercise his removal rights after being served." Destfino v. Reiswig, 630 F.3d 952, 956 (9th Cir. 2011).
In this case, Defendant Goldsmith became a defendant in the case when Plaintiff served a copy of the second amended complaint on the City Attorney of San Diego on July 5, 2013. See ECF No. 1-3 at 10. Under the "later-served defendant rule, " Defendant Goldsmith was afforded thirty days from July 5, 2013 to file a notice of removal, which renders the notice of removal Defendant Goldsmith filed on July 29, 2013 timely.
Supplemental jurisdiction is proper over Unruh Civil Rights Act claims when these claims are filed in conjunction with federal causes of action. See Bass v. County of Butte, 458 F.3d 978, 979 (9th Cir. 2006) (implicitly approving district's court's exercise of supplemental jurisdiction over plaintiff's Unruh Civil Rights Act claim); Goldman v. Standard Ins. Co., 341 F.3d 1023, 1025 (9th Cir. 2003) (same); Martin v. Int'l Olympic Comm., 740 F.2d 670, 673 (9th Cir. 1984) (same); Id. (Pregerson, J., dissenting) ("The action was originally filed in the California state courts but was removed to the federal district court under federal question jurisdiction.... We have ...