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Cobian-Perez v. Personal Protective Services, Inc.

United States District Court, Ninth Circuit

January 28, 2014



EDWARD M. CHEN, District Judge

Plaintiff Jorge Cobian-Perez has filed suit against multiple defendants, asserting that his rights were violated by, inter alia, private security guards working at a grocery store and by City of Oakland police officers. The City of Oakland is one of the named defendants. Mr. Cobian-Perez has asserted a claim against the City for, inter alia, violation of 42 U.S.C. § 1983. See Docket No. 1 (Not. of Removal, Ex. E) (FAC ¶¶ 127-53) (alleging failure to train). Currently pending before the Court is Mr. Cobian-Perez's motion to remand the instant case back to the state court from which the City removed it.

Having considered the parties' briefs, [1] the Court finds this matter suitable for disposition without oral argument and VACATES the hearing set for February 20, 2014. The Court hereby DENIES the motion to remand.


In his complaint, Mr. Cobian-Perez essentially alleges that private security guards working at a grocery store detained him without cause and severely beat him. Mr. Cobian-Perez also alleges that City policy officers "aided and abetted" the security guards "because they refused to investigate what [he] told them about [being beaten], despite knowing [the security guards'] claims were not true." FAC ¶ 79; see also FAC ¶ 88 (also alleging that the Oakland Police Department ratified the racial discrimination by the security guards). All of the claims asserted by Mr. Cobian-Perez in his complaint are state claims, except for a § 1983 claim pled against the City.

Mr. Cobian-Perez initiated this lawsuit in state court. The City, based on the § 1983 claim, removed the case to federal court on November 6, 2013. In its notice, the City asserts that the first date it learned of the pending lawsuit was "on or about October 8, 2013, when an unregistered process server delivered the complaint and an incomplete Summons to the Oakland Police Department." Docket No. 1 (Not. of Removal ¶ 2 & Ex. B).

In the notice, the City also claims that (1) one of the entity defendants, Personal Protective Services, Inc. ("PPS"), has joined in the notice of removal, and that (2) the remaining two entity defendants, i.e., Green Valley Foods and Bridge Housing Corporation, do not appear to have been served.[2] See Docket No. 1 (Not. ¶ 4). As for the individual defendants, the City claims that none were properly served based on the proofs of service that Mr. Cobian-Perez filed in state court on October 21 and 22, 2013. "The purported proofs all indicate that substituted service was attempted on the individuals [in September and October 2013] but Plaintiff has not filed declarations showing that personal service was tried first or that the Summons and Complaint was later mailed to the individuals." Docket No. 1 (Not. of Removal ¶ 4); see also Docket No. 1 (Not. of Removal, Ex. C) (proofs of service).


A. Legal Standard

Under 28 U.S.C. § 1441, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a); see also Rodriguez v. AT&T Mobility Servs. LLC, 728 F.3d 975, 977 (9th Cir. 2013) (stating that "[a] defendant may remove to federal district court an action first brought in state court when the district court would have original jurisdiction"). The parties do not dispute that, because of the § 1983 claim against the City, this Court has original jurisdiction ( i.e., federal question jurisdiction) over the case. See 28 U.S.C. § 1331.

Rather, the parties' dispute centers on the requirements of 28 U.S.C. § 1446. Under § 1446, "[w]hen 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). According to Mr. Cobian-Perez, the instant case must be remanded back to state court because the City has failed to establish that PPS and two of the individual defendants, - namely Stanley K. Teets and Ibrahim Shariff - joined in or consented to the removal by the City. The City has the burden of showing that these defendants joined or consented to the removal or that there is reason why they did not (which does not preclude removal). See Prize Frize Inc. v. Matrix Inc., 167 F.3d 1261, 1266 (9th Cir. 1999) (stating that, "[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").

Notably, if all of the defendants properly joined and served did not join in or consent to the removal, a "district court may [still] allow the removing defendants to cure the defect by obtaining joinder of all defendants prior to the entry of judgment." Destfino v. Reiswig, 630 F.3d 952, 957 (9th Cir. 2011).


Mr. Cobian-Perez argues first that removal by the City was improper because there is nothing to substantiate the City's claim in its notice of removal that PPS actually joined in or consented to the removal. In response, the City argues that it was not required to file a written consent by PPS. The City is correct. In Proctor v. ...

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