United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PETITIONER'S MOTION TO REMAND BE GRANTED ECF NO. 13
STANLEY A. BOONE, Magistrate Judge.
On December 13, 2013, Petitioner California Department of Health Care Services ("DHCS") filed a motion to remand this action back to state court. (ECF No. 13.) The motion was referred to the undersigned magistrate judge for findings and recommendations pursuant to 28 U.S.C. §636(b).
The hearing on Plaintiff's motion took place on February 19, 2014. For the reasons set forth below, the Court recommends that Plaintiff's motion to remand be granted.
This action was removed from the Superior Court of California for the County of Santa Clara on November 14, 2013. (ECF No. 1.) The action was removed by "Real Parties in Interest, Parents of Student." (Notice of Removal 1:24-27.) This action was removed on the grounds that the action involves questions of federal law under the Individuals with Disabilities Education Act ("IDEA").
DHCS initiated this action by filing a Petition for Writ of Mandate in state court on October 10, 2013. DHCS sought a writ of mandate directed to the Office of Administrative Hearings ("OAH") to set aside OAH's decision issued on July 15, 2013. OAH is named as the respondent to the Petition for Writ of Mandate. The real parties in interest are a student who attends a public school within the Sonora Elementary School District ("Student"), Student's parents ("Parents"), and the Tuolumne County Office of Education.
The underlying dispute concerns the free, appropriate public education ("FAPE") required under the IDEA for children with disabilities. A dispute arose between Student and Parents, on one hand, and Tuolumne County Children's Services Program ("CCS") concerning the physical therapy and occupational therapy services that must be provided to Student under the IDEA.
On July 15, 2013, OAH held a hearing and determined that CCS denied Student a FAPE by reducing Student's physical therapy and occupational therapy without going through the individualized education program ("IEP") process. OAH required CCS to restore Student's physical therapy and occupational therapy services to the pre-reduction levels and provide Student with 40 hours of compensatory occupational therapy and 50 hours of compensatory physical therapy. DHCS's petition for writ of mandate contends that OAH exceeded its jurisdiction and abused its discretion with its order.
DHCS now seeks remand of this action and contends that the Court lacks jurisdiction because this case does not arise under federal law. DHCS also contends that removal was procedurally defective because Respondent OAH has not joined in or consented to removal. Student and Parents oppose remand.
LEGAL STANDARDS FOR MOTIONS TO REMAND
Removal of actions from state court to federal court are generally governed by 28 U.S.C. § 1441, which states, in pertinent part:
(a) Generally.-Except as otherwise expressly provided by Act of Congress, 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 ...