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Allen v. Ahlin

United States District Court, E.D. California

May 4, 2017

DAVID ALLEN, Plaintiff,
v.
PAM AHLIN, et al., Defendants.

          FINDINGS AND RECOMMENDATION, RECOMMENDING THAT PLAINTIFF'S MOTION FOR REMAND BE GRANTED (ECF No. 5.) OBJECTIONS, IF ANY, DUE IN FOURTEEN (14) DAYS

          Gary S. Austin UNITED STATES MAGISTRATE JUDGE

          I. RELEVANT PROCEDURAL HISTORY

         David 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.)

         On 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.)

         On 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

         28 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.

         28 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”).

         Pursuant 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).

         Filing 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

         Plaintiff 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., Exh. A.)

         Plaintiff also argues that defendant Ahlin did not properly join in or consent to defendant Allenby's removal, as ...


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