United States District Court, E.D. California
FINDINGS AND RECOMMENDATION, RECOMMENDING THAT
PLAINTIFF'S MOTION FOR REMAND BE GRANTED (ECF No. 5.)
OBJECTIONS, IF ANY, DUE IN FOURTEEN (14) DAYS
S. Austin UNITED STATES MAGISTRATE JUDGE
I. RELEVANT PROCEDURAL HISTORY
Allen (“Plaintiff”) is a pretrial detainee
proceeding pro se in this civil rights action pursuant to 42
U.S.C. § 1983. Plaintiff is currently detained at
Coalinga State Hospital in Coalinga, California, in the
custody of the California Department of State Hospitals
(CDSH), where the events at issue in the complaint allegedly
occurred. This action was initiated by civil complaint filed
by Plaintiff in the Fresno County Superior Court on February
1, 2016 (Case #16CECG00387). On March 3, 2016, Plaintiff
filed the First Amended Complaint against two defendants, Pam
Ahlin (Director, CDSH) and Cliff Allenby (Acting Director,
CDSH) (“Defendants”). (ECF No. 2 at 6-65.) On
September 9, 2016, defendant Allenby removed the case to
federal court by filing a Notice of Removal of Action
pursuant to 28 U.S.C § 1441. (ECF No. 2.) Defendant
Allenby asserts in the Notice of Removal that he was served
with a copy of the Amended Complaint on June 20, 2016. (ECF
No. 2 at 2, ¶4.)
October 4, 2016, defendant Pam Ahlin filed a Notice of
Removal of Action pursuant to 28 U.S.C § 1441. (ECF No.
9.) Defendant Ahlin asserts that she was served with a copy
of the Amended Complaint on September 14, 2016. (ECF No. 9 at
2, ¶4.) On October 4, 2016, defendant Allenby joined in
defendant Ahlin's Notice of Removal. (ECF No. 10.)
September 29, 2016, Plaintiff filed a motion to remand this
action to the State court. (ECF No. 5.) On October 14, 2016,
Defendants filed an opposition to the motion. (ECF No. 11.)
On December 9, 2016, Plaintiff filed a reply to the
opposition. (ECF No. 13.) Plaintiff's motion to remand is
now before the court. Local Rule 230(l).
II.PLAINTIFF'S MOTION TO REMAND
A. Legal Standard
U.S.C. § 1441(a) provides: “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 the district and division embracing the
place where such action is pending.” Federal courts,
however, are courts of limited jurisdiction. See
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994); Guglielmino v. McKee Foods
Corp., 506 F.3d 696, 700 (9th Cir. 2007). As a
result, the removal statute is construed strictly against
removal, and, “[f]ederal jurisdiction must be rejected
if there is any doubt as to the right of removal in the first
instance.” Gaus v. Miles, Inc., 980 F.2d 564,
566 (9th Cir. 1992); see also Boggs v.
Lewis, 863 F.2d 662, 663 (9th
Cir.1988). 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. This court has original jurisdiction
over actions brought pursuant to 42 U.S.C. § 1983.
See 28 U.S.C. § 1331.
U.S.C. § 1446 sets forth the statutory procedures a
defendant or defendants must follow to remove an action to
federal court. Under those procedures, which also are to be
“strictly construed, ” Syngenta Crop Prot.,
Inc. v. Henson, 537 U.S. 28, 32 (2002), the notice of
removal containing a short and plain statement of the grounds
for removal, 28 U.S.C. § 1446(a), “shall be filed
within 30 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, 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, ” 28 U.S.C.
§ 1446(b)(1). See Murphy Bros.,
Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344,
347-48 (1999) (the 30-day deadline to remove set forth in
§ 1446(b) is “triggered by” service
of summons and complaint and not by earlier “receipt of
the complaint unattended by any formal service”).
to the so-called “last-served defendant rule, ”
which since 2011 has been codified in the removal procedure
statute, “[e]ach defendant shall have 30 days after
receipt by or service on that defendant of the initial
pleading or summons . . . to file the notice of
removal.” 28 U.S.C. § 1446(b)(2)(B). And
pursuant to the so-called “unanimity rule, ”
“[w]hen a civil action is removed solely under [28
U.S.C. §] 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).2 “If
defendants are served at different times, and a later-served
defendant files a notice of removal, any earlier-served
defendant may consent to the removal even though that
earlier-served defendant did not previously initiate or
consent to removal.” 28 U.S.C. § 1446(b)(2)(C).
a motion to remand is the proper way to challenge removal.
Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d
1241, 1244 (9th Cir. 2009). Remand to state court may be
ordered either for lack of subject matter jurisdiction or,
upon the timely filing of a motion to remand, for any defect
in removal procedure. 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, but the court may consider
whether it has subject matter jurisdiction over a case at any
time. Id. When the court's subject matter
jurisdiction is at issue, the court may remand sua
sponte or on motion of a party, and the party who
invoked the federal court's jurisdiction has the burden
of establishing it. See Sanchez v. Monumental
Life Ins. Co., 102 F.3d 398, 403-04 (9th Cir.
1996); Emrich v. Touche Ross & Co., 846
F.2d 1190, 1195 (9th Cir. 1988) (citing Wilson v.
Republic Iron & Steel Co., 257 U.S. 92, 97 (1921).
On plaintiff's motion for remand, the defendant seeking
removal of the action to federal court has the burden of
establishing grounds for federal jurisdiction in the case.
Gaus, 980 F.2d at 566. The defendant also has the
burden of showing that it has complied with the procedural
requirements for removal. California ex rel. Lockyer v.
Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004).
B. Plaintiff's Position
argues that this case should be remanded to the Fresno County
Superior Court, due to procedural defects in defendant
Allenby's removal. Plaintiff argues that Defendant
Allenby removed this case to federal court months after he
was served with process, and therefore the removal is
untimely. Plaintiff submits as evidence a copy of the Proof
of Service of Summons filed at Fresno County Superior Court
on June 20, 2016, showing that defendant Allenby was served
with the summons and complaint on April 21, 2016. (ECF No. 7,
Exh. B.) Plaintiff also submits a copy of the Proof of
Service of Summons filed at Fresno County Superior Court on
May 23, 2016, showing that defendant Ahlin was served with
the summons and complaint on April 21, 2016. (Id.,
also argues that defendant Ahlin did not properly join in or
consent to defendant Allenby's removal, as ...