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Patterson v. Cate

United States District Court, Ninth Circuit

November 25, 2013

VESTER PATTERSON, Plaintiff,
v.
MATTHEW CATE, et al., Defendants.

ORDER DENYING PLAINTIFF'S MOTION TO REMAND

LAWRENCE J. O'NEILL, District Judge.

I. Background

This civil action, which arises out of prison conditions of confinement, was removed from Kings County Superior Court by Defendant R. Diaz ("Defendant") on September 19, 2013.[1] 28 U.S.C. § 1441(a). On October 3, 2013, Plaintiff Vester Patterson ("Plaintiff"), a state prisoner proceeding pro se, filed a motion to remand on the ground that Defendant failed to file a timely notice of removal. 28 U.S.C. § 1446(b)(1). Defendant filed an opposition on October 17, 2013, Plaintiff filed a reply on November 1, 2013, and the motion has been submitted upon the record without oral argument. Local Rule 230( l ).

II. Discussion

A. Jurisdiction

Under 28 U.S.C. § 1441(a), a defendant may remove from state court any action "of which the district courts of the United States have original jurisdiction." Federal courts "shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. The removal statute is strictly construed, and Defendant bears the burden of establishing grounds for removal. Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 32, 123 S.Ct. 366 (2002); Provincial Government of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). As a threshold matter, courts "must consider whether federal jurisdiction exists, even if no objection is made to removal, and even if both parties stipulate to federal jurisdiction, " Rains v. Criterion Systems, Inc., 80 F.3d 339, 342 (9th Cir. 1996) (citations omitted), and "federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance, '" Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996) (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).

"The presence or absence of federal-question jurisdiction is governed by the well-pleaded complaint rule, which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar, Inc., v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425 (1987) (internal quotations and citations omitted). "The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar, Inc., 482 U.S. at 392.

In this instance, Plaintiff's second amended complaint specifically pleads claims for relief under 42 U.S.C. § 1983 and 42 U.S.C. § 2000cc-1 (Religious Land Use and Institutionalized Persons Act of 2000). Therefore, the Court has subject matter jurisdiction over this action.

B. Timely Notice of Removal

Turning to Plaintiff's motion to remand, Plaintiff argues that Defendant failed to file a timely notice of removal. 28 U.S.C. § 1446(b)(1). Section 1446 provides, in relevant part:

The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendants, through service or otherwise, of a copy of the initial pleading, setting forth the claim relief upon which such action or proceeding is based, 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.

"A named defendant's time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, through service or otherwise, after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service.'" Quality Loan Serv. Corp. v. 24702 Pallas Way, Mission Viejo, CA 92691, 635 F.3d 1128, 2232-33 (9th Cir. 2011) (quoting Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48, 119 S.Ct. 1322 (1999)). "Actual notice of the action is insufficient; rather, the defendant must be notified of the action, and brought under a court's authority by formal process, ' before the removal period begins to run." Quality Loan Serv. Corp., 635 F.3d at 1133 (quoting Murphy Bros., 526 U.S. at 347) (emphasis added).

Plaintiff's evidence of notice is an opposition filed by the Attorney General's Office on April 15, 2013, and a proof of service for an order issued by the Kings County Superior Court, dated July 5, 2013. However, neither document demonstrates that Defendant Diaz had been brought within the superior court's authority by formal process. First, Plaintiff's evidence that service occurred more than thirty days prior to removal pertains to Cate and Beard. "[E]ach 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), and in this case, Plaintiff has not shown that Defendant Diaz failed to file his notice of removal within thirty days. To the contrary, Defendant submitted evidence that he was served on or around August 20, 2013, making his notice timely.[2], [3]

Second, the Attorney General's Office made a special appearance on behalf of Cate and Beard on April 15, 2013, for the limited purpose of arguing that Plaintiff was not entitled to entry of default judgment and judgment against them, because he had not properly effected service of process and the court lacked jurisdiction over them. This special appearance did not constitute a general appearance on behalf of Cate and Beard. Serrano v. Stefan Merli Plastering Co., Inc., 162 Cal.App.4th 1014, 1028-29, 76 Cal.Rptr.3d 559 (Cal.Ct.App. 2008). The subsequently issued proof of service is of no assistance to Plaintiff, either, as it recognized the special appearance designation and it is merely a proof of service.

In reply to Defendant's brief opposition to the motion to remand, in which Defendant states that Plaintiff offers no compelling evidence of any procedural defects, Plaintiff reiterates the arguments already addressed and argues additionally that he served Cate, Beard, and the Attorney General's Office. (Opp., 3:8-9; Reply, pp. 2-4.) However, Plaintiff did not succeed in effecting service on Cate and Beard by merely mailing them the service packet. Plaintiff concedes that Cate and Beard did not sign and return acknowledgments, and in the absence of a signed, returned acknowledgement, service was not effected. Cal. Civ. Proc. Code § 415.30(c); Robinson, 2009 WL 652209, at *1 (citing Thierfeldt, 35 Cal.App.3d at 199). Furthermore, this is not an action against the State, Cal. Gov't Code § 955.4, and notwithstanding that fact, service on the Attorney General's Office, where authorized or required, nonetheless requires compliance with the rules governing service, e.g., Cal. Civ. Proc. Code § 415.30(c).

In the absence of any evidence to the contrary, Defendant Diaz was served on or around August 20, 2013, and his notice of removal was timely filed within thirty days of that date. Plaintiff is not entitled to remand.

III. Conclusion and Order

In conclusion, Plaintiff has not demonstrated that he is entitled to remand based on Defendant Diaz's failure to file a notice of removal within thirty days, and Plaintiff's motion to remand is HEREBY ORDERED DENIED.

IT IS SO ORDERED.


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