United States District Court, C.D. California
Maria Leal, et al.
County of San Bernardino, et al.
PRESENT: HONORABLE JOHN F. WALTER, UNITED STATES DISTRICT
CIVIL MINUTES -- GENERAL
(IN CHAMBERS): ORDER DENYING PLAINTIFFS' CORRECTED MOTION
TO REMAND CASE TO SAN BERNARDINO COUNTY SUPERIOR COURT [filed
10/11/2019; Docket No. 16]
October 11, 2019, Plaintiffs Maria Leal and Nicholas Quintero
(collectively, “Plaintiffs”), filed a Motion to
Remand Case to San Bernardino County Superior Court
(“Motion to Remand”). On October 28, 2019,
Defendants County of San Bernardino; San Bernardino
Sheriff's Department; Jeff Rose; A. Cueto; J. Warren;
Keith Lewis; E. Burke, R.N.; Wayne Sullivan; Jeffrey Haga;
and Stacimae Cota (collectively, “Defendants”)
filed their Opposition. On November 4, 2019, Plaintiffs filed
a Reply. Pursuant to Rule 78 of the Federal Rules of Civil
Procedure and Local Rule 7-15, the Court finds that this
matter is appropriate for decision without oral argument. The
hearing calendared for November 18, 2019 is hereby vacated
and the matter taken off calendar. After considering the
moving, opposing, and reply papers, and the arguments
therein, the Court rules as follows:
FACTUAL AND PROCEDURAL BACKGROUND
August 9, 2017, Plaintiffs filed a Second Amended Complaint
in San Bernardino County Superior Court (“State
Action”) against Defendants County of San Bernardino,
San Bernardino Sheriff's Department, Jeff Rose, and Does
1 through 25, alleging violations of their constitutional
rights under the Fourteenth Amendment pursuant to 42 U.S.C.
§ 1983. On November 15, 2018, Plaintiffs filed Doe
Amendments naming Defendants A. Cueto; K. Johnson; J. Warren;
Keith Lewis; SCS Fischer; E. Burke, R.N.; and P. Stafford,
R.N. as Does 11 through 17. On November 19, 2018, Plaintiffs
filed Doe Amendments naming A. Cueto, J. Warren, K. Johnson,
K. Lewis, E. Burke, R.N., SCS Fischer, and P. Stafford, R.N.
as Does 1 through 7. On February 22, 2019, Plaintiffs filed
another Doe Amendment, naming W. Sullivan as Doe Number 8. On
June 7, 2019, Plaintiffs again filed Doe Amendments, naming
Defendants Staciemae Cota and Jeffrey Haga as Does 8 and 9.
September 11, 2019, less than thirty days after they had been
served with the Second Amended Complaint, Defendants
Staciemae Cota and Jeffrey Haga filed a Notice of Removal of
Action Under 28 U.S.C. § 1441(a) (“Notice of
Removal”). Defendants County of San Bernardino, San
Bernardino County Sheriff's Department, J. Rose, A.
Cueto, J. Warren, K. Johnson, K. Lewis, W. Sullivan, and E.
Burke consented and joined in the Notice of Removal. P.
Stafford and SCS Fischer did not consent or join in the
Notice of Removal, In the Notice of Removal, Defendants
claimed that their consent was unnecessary because they had
not been properly served with the Second Amended Complaint.
move to remand on the grounds that Defendants violated the
“rule of unanimity, ” which provides that
“all defendants who have been properly joined and
served in the action must join in or consent to the removal
of the action.” 28 U.S.C. § 1446(b)(2)(A).
Specifically, Plaintiffs claim that they properly served
Defendant SCS Fischer by substitute service on August 24,
2019, which became effective on September 3, 2019, and thus
her failure to consent or join in the Notice of Removal
requires the remand of this action.
on October 17, 2019, after Plaintiffs filed their Motion to
Remand, Defendant Barbara Fischer (or SCS Fischer) filed a
Notice of Joinder and Consent to Removal of Action Under 28
U.S.C. § 1441(a) (“Notice of Joinder”),
stating in relevant part: “Barbara Fischer . . . joins
in and consents to the previously filed Notice of Removal and
further requests removal on her own behalf solely for the
purposes of this Court to determine whether she was properly
served and whether the Court has personal jurisdiction over
her.” Notice of Joinder at ¶ 6. SCS Fischer
maintains that she has not been properly served with the
Second Amended Complaint. On October 21, 2019, Plaintiffs
filed Objections to SCS Fischer's Notice of Joinder.
motion to remand is the proper procedure for challenging
removal. See N. Cal. Dist. Council of Laborers v.
Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1038 (9th
Cir.1995). The removal statute is strictly construed, and any
doubt about the right of removal is resolved in favor of
remand. See Gaus v. Miles, Inc., 980 F.2d 564, 566
(9th Cir.1992); see also Prize Frize, Inc. v. Matrix,
Inc., 167 F.3d 1261, 1265 (9th Cir.1999). Consequently,
if a plaintiff challenges the defendant's removal of a
case, the defendant bears the burden of establishing the
propriety of the removal. See Gaus, 980 F.2d at 566;
see also Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th
Cir.1996) (citations and quotations omitted) (“Because
of the Congressional purpose to restrict the jurisdiction of
the federal courts on removal, the statute is strictly
construed, and federal jurisdiction must be rejected if there
is any doubt as to the right of removal in the first
defendants who have been ‘properly . . . served in the
action' must join a petition for removal.”
Destfino v. Reiswig, 630 F.3d 952, 956 (9th Cir.
2011) (quoting Emrich v. Touche Ross & Co., 846
F.2d 1190, 1193 n.1 (9th Cir. 1981)). See also 28
U.S.C. § 1446(b)(2)(A). “Failure to obtain consent
of all served defendants prior to the expiration of the
30-day removal period renders the case subject to
remand.” Tutor-Saliba Corp. v. Everest National
Ins. Co., 2015 WL 13427744, at *1 (C.D. Cal. Apr. 13,
2015) (citing Prize Frize, Inc. v. Matrix (U.S.)
Inc., 167 F.3d 1261, 1266 (9th Cir. 1999)). The district
court, however, “may allow the removing defendants to
cure the defect by obtaining joinder of all defendants prior
to the entry of judgment.” Destfino, 630 F.3d
at 956. In this case, especially in light of the dispute over
whether Defendant SCS Fischer was properly served with the
Second Amended Complaint, the Court exercises its discretion
and concludes that the Notice of Joinder filed by Defendant
SCS Fischer has cured any potential procedural defect in the
removal of this action. The Court rejects Plaintiffs'
argument that the Notice of Joinder filed by Defendant SCS
Fischer is insufficient.
foregoing reasons, Plaintiffs' Motion to Remand is
DENIED. Plaintiffs' ...