United States District Court, C.D. California
PRESENT: THE HONORABLE CHRISTINA A. SNYDER JUDGE.
PLAINTIFF’S MOTION FOR REMAND TO STATE COURT
(DKT. 7, FILED JUNE 15, 2016)
HONORABLE CHRISTINA A. SNYDER JUDGE.
Court finds this motion appropriate for decision without oral
argument. See Fed. R. Civ. P. 78; C.D. Cal. Local
Rule 7-15. Accordingly, the hearing date of August 1, 2016,
is vacated, and the matter is hereby taken under submission.
INTRODUCTION & BACKGROUND
March 29, 2016, plaintiff Francisco Gomez filed this action
in the Los Angeles County Superior Court against defendants
Mitco West, Inc. (“Mitco”), Barry Miller and Joan
Miller, as trustees for the Barry and Joan Miller Trust,
Lesley Rubinstein, as trustee for the Rubinstein Trust, and
Does 1 through 10 (collectively, “defendants”).
Dkt. 1-2 (“Compl.”). Plaintiff asserted claims
against defendants for: (1) violation of the Unruh Act,
California Civil Code §§ 51, et seq.; (2)
violation of the Disabled Persons Act, California Civil Code
§§ 51, et seq; (3) violation of the
Americans with Disabilities Act, 42 U.S.C. §§
12181, et seq.; and (4) negligence. Id. On
May 17, 2016, defendant Mitco removed this action to this
court on the basis of federal question jurisdiction. Dkt. 1.
15, 2016, plaintiff filed a motion to remand this action to
state court. Dkt. 7. On July 9, 2016, Mitco filed an
opposition, Dkt. 9, and on July 25, 2016, plaintiff filed a
reply, Dkt. 10. Plaintiff’s motion is presently before
motion for remand is the proper procedure for challenging
removal. Remand may be ordered either for lack of subject
matter jurisdiction or for any defect in removal procedure.
See 28 U.S.C. § 1447(c). The Court strictly
construes the removal statutes against removal jurisdiction,
and jurisdiction must be rejected if there is any doubt as to
the right of removal. See Gaus v. Miles, Inc., 980
F.2d 564, 566 (9th Cir. 1992). The party seeking removal
bears the burden of establishing federal jurisdiction.
See Prize Frize, Inc. v. Matrix, Inc., 167 F.3d
1261, 1265 (9th Cir. 1999). The defendant also has the burden
of showing that it has complied with the procedural
requirements for removal. Judge William W. Schwarzer, et al.,
California Practice Guide: Federal Civil Procedure Before
Trial § 2:609 (The Rutter Group 2007).
28 U.S.C. § 1446(b), the defendant must file the notice
of removal within 30 days after being served with a complaint
alleging a basis for removal. When there are multiple
defendants, all defendants named in the complaint and who
have been properly joined and served in the action must also
join in the removal. Hewitt v. City of Stanton, 798
F.2d 1230, 1232 (9th Cir. 1986). This is known as the rule of
unanimity. See Chicago, Rock Island & Pac. Ry. v.
Martin, 178 U.S. 245 (1900); see also Schwarzer, supra,
defendant's removal notice fails to meet the procedural
requirements of § 1446(b), the court may remand the
action based on the plaintiff's timely motion.
McAnally Enters., Inc. v. McAnally, 107 F.Supp.2d
1223, 1226 (C.D. Cal. 2000). Pursuant to 28 U.S.C. §
1447(c), a motion to remand based on any defect other than
subject matter jurisdiction must be made within 30 days after
the filing of the notice of removal.
stated above, pursuant to 28 U.S.C. § 1446(b), a
defendant must file a notice of removal within 30 days after
being served with a complaint alleging a basis for removal.
Here, Mitco was served with plaintiff’s complaint on
April 12, 2016. Dkt. 7, Ex. 1, Proof of Service. Accordingly,
to the extent Mitco had a valid basis for removing this
action to federal court, it was required to file a notice of
removal by, at the latest, May 12, 2016. Nonetheless, Mitco
did not file a notice of removal until May 17, 2016-five days
after this deadline. See Dkt. 1.
opposition, Mitco concedes that its notice of removal was
untimely. See Opp’n., at 1 (“It now
appears the summons was, in fact, served on April 12, 2016,
thereby making the notice of removal five (5) days
late.”). Instead, Mitco argues that the Court should
find that its notice of removal was untimely as a result of
“excusable neglect.” Specifically, Mitco contends
that, in the summons delivered to Mitco, the delivery date
was hand-written. As such, Mitco’s counsel states that
he was unable to clearly read the date on which the summons
had been delivered and mistakenly believed that plaintiff had
served Mitco on April 17, 2016, instead of April 12, 2016.
while Mitco’s error may have been inadvertent, the
Court finds that this is not a sufficient basis to excuse
Mitco’s failure to timely file a notice of removal.
First, Court’s rarely excuse a defendant’s
obligation to timely file a notice of removal. See
Douglass v. Weyerhaeuser Co., 662 F.Supp. 147, 149 (C.D.
Cal. 1987) (“The time limitations of § 1446(b) are
mandatory and the defendant must strictly comply with them.
If [the Superior Court action] was not timely removed it
should be remanded to the state court.”) (citations
omitted); see also Dietrich v. Cooperstein, 1995 WL
59494, at *2 (N.D. Cal. Feb. 8, 1995) (“Literally
dozens of federal courts have held that the time provisions
of section 1446(b) are mandatory and must be strictly
construed.”). This is true even where a defendant
misses the 30-day deadline by only a few days or as a result
of inadvertent error. See, e.g., DeMichele v.
Loewen, Inc., 2012 WL 1980828, at *3 (N.D. Cal. Jun. 1,
2012) (Breyer, J.) (Granting motion to remand where notice of
removal was filed two days late as a result of
“inadvertent error”); Student A. By ...