United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION TO REMAND ACTION TO STATE COURT (Doc. 12)
JENNIFER L. THURSTON, Magistrate Judge.
Plaintiff, Sean Baptiste Neal, is a state prisoner proceeding pro se in this civil rights action. On February 4, 2013, Plaintiff filed this action in Kern County Superior Court. (Doc. 1-1.) After a demur was granted, Plaintiff stipulated that he would amend as to all Defendants. (Doc. 1, ¶5.) Plaintiff served the First Amended Complaint ("1stAC") on Defendants on December 1, 2014 and they received it Defendants on December 3, 2014. ( Id., at ¶ 6.) Defendants filed their notice of removal in this action on December 22, 2104. (Doc. 1.) On January 26, 2015, Plaintiff filed a motion for remanded. (Doc. 12.) Defendants filed an opposition to which Plaintiff replied. (Docs. 15, 16.) The motion is deemed submitted. L.R. 230(1).
A. Legal Standards
Section 1441(a) of Title 28 provides that a defendant may remove from state court any action "of which the district courts of the United States have original jurisdiction." The vast majority of lawsuits "arise under the law that creates the cause of action." Am. Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585 (1916) (Holmes, J.); Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229 (1986). 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. However, "a case may [also] arise under federal law where the vindication of a right under state law necessarily turn[s] on some construction of federal law, '" Merrell Dow, 478 U.S. at 808, 106 S.Ct. 3229 (quoting Franchise Tax Bd. v. Const. Laborers Vac. Trust, 463 U.S. 1, 9, 103 S.Ct. 2841 (1983) (emphasis added)), but "only [if]... the plaintiff's right to relief necessarily depends on a substantial question of federal law, " Franchise Tax Bd., 463 U.S. at 28, 103 S.Ct. 2841 (emphases added).
For removal to be proper, it must be clear from the face of the complaint that federal subject matter jurisdiction exists. Oklahoma Tax Comm'n. v. Graham, 489 U.S. 838, 840-41, 109 S.Ct. 1519 (1989) (per curiam). 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) (quotation marks and citation omitted); Hunter v. Phillip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (citations omitted); Marin General Hosp. v. Modesto Empire Traction Co., 581 F.3d 941, 944 (9th Cir. 2009) (citations omitted); Hall, 476 F.3d at 687 (citation omitted).
The removal statute is strictly construed against removal and the 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) (citations omitted); Nevada v. Bank of America Corp., 672 F.3d 661, 667 (9th Cir. 2012) (citation omitted); Fossen v. Blue Cross & Blue Shield of Montana, Inc., 660 F.3d 1102, 1107 (9th Cir. 2011) (citation omitted); Hunter, 582 F.3d at 1042 (citations omitted). Courts must consider whether federal jurisdiction exists, Rains v. Criterion Systems, Inc., 80 F.3d 339, 342 (9th Cir. 1996) (quotation marks and citations omitted), and must reject federal jurisdiction 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) (quotation marks and citation omitted); Hunter, 582 F.3d at 1042 (citations omitted).
1. Plaintiff's Motion
Plaintiff makes three arguments to support his motion to remand: (1) that Defendants' notice of removal was not timely filed since Defendants received the original Complaint on August 12, 2014 which relied on more federal law than the 1stAC did (Doc. 12, p. 4); (2) that the case does not turn on a federal question since the 1stAC does not present a substantial dispute over the effect of a federal law ( id., at pp. 5-7); and (3) that Defendants are forum shopping to avoid legal responsibility ( id., at p. 7). Plaintiff requests that if remand is not granted, all claims requiring interpretation of California law be severed from this action. ( Id., at p. 7.)
Defendants respond that Plaintiff's original Complaint did not invoke federal court jurisdiction (Doc. 15, pp. 2-4); that their removal after receipt of the 1stAC was proper ( id., at pp. 4-5); and that they are not forum shopping ( id., at pp. 5-6).
a. Timeliness of Notice of Removal
Procedures for removal are prescribed by 28 U.S.C. § 1446. If a defendant or defendants desire to remove a civil action from state court to federal court, they must file "a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action." 28 U.S.C. § 1446(a).
Subdivision (b) of § 1446 specifies the "notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based...." 28 U.S.C. § 1446(b). Subdivision (b)(3) of that same section states "if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." Failure to comply with ...