Jane Doe v. County of Los Angeles et al

Filing 19

ORDER REMANDING CASE TO STATE COURT by Judge Audrey B. Collins. The defect in the Notice of Removal has not been cured and removal is improper. The Court therefore REMANDS this case from the state court from which it was removed. Case number BC498168 Case Terminated. Made JS-6 (Attachments: # 1 remand letter) (bp)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 13-1658 ABC (DTBx)

Title

Jane Doe v. County of Los Angeles et al

Present: The Honorable

Date

April 9, 2013

Audrey B. Collins, District Judge

Angela Bridges

None Present

N/A

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiff:

Attorneys Present for Defendant:

None Present

None Present

Proceedings:

ORDER REMANDING CASE TO STATE COURT
(In Chambers)

Defendants County of Los Angeles and Los Angeles County Sheriff’s Department (“County
Defendants”) filed their Notice of Removal removing this action from state court on March 8, 2013. As
of the date of this order, defendant Kenneth Alexander has not joined in or consented to the removal.
Under 28 U.S.C. § 1446(b)(2)(A), all defendants must join in a removal in order for that removal
to be proper. 28 U.S.C.§ 1446(b)(2)(A) (“When a civil action is removed solely under section 1441(a),
all defendants who have been properly joined and served must join in or consent to the removal of the
action.”). “Where fewer than all the defendants have joined in a removal action, the removing party has
the burden under section 1446(a) to explain affirmatively the absence of any co-defendants in the notice
for removal.” Prize Frize v. Matrix, 167 F.3d 1261, 1266 (9th Cir. 1999) (superceded by statute on
other grounds). In the absence of an explanation, a “removal notice is defective,” and if that “[defect is]
uncured within the thirty-day statutory period,” removal is improper. Id.
In their Removal Notice, the County Defendants explain that they were “exempt from the
requirement that all defendants join in the notice of removal” because Alexander had not been served
with the Complaint. Notice of Removal ¶ 3. This assertion is incorrect, however, because the record
reflects that Alexander was served with the Complaint and Summons on February 10, 2013. As such,
Alexander’s non-joinder in removal remains unexplained and the Notice of Removal is defective.
See Cont’l Ins. Co. v. Foss Mar. Co., C 02-3936 MJJ, 2002 WL 31414315 (N.D. Cal. Oct. 23, 2002)
(where explanation for failing to join all defendants was invalid, the failure to join was unexplained and
the removal notice was defective; case remanded).
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CV-90 (06/04)

CIVIL MINUTES - GENERAL

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 13-1658 ABC (DTBx)

Date

Title

April 9, 2013

Jane Doe v. County of Los Angeles et al

In their Reply, County Defendants state that at the time of removal, they were not aware that
Alexander had been served, and that they did not learn this fact until March 8, 2013, after the removal
was filed. See Reply 6:25-28. However, insofar as County Defendants may have had a thirty-day
statutory period from the time of removal to cure this defect, that period lapsed on April 8. As such, the
defect in the Notice of Removal has not been cured and removal is improper. The Court therefore
REMANDS this case from the state court from which is was removed.
IT IS SO ORDERED.

:
Initials of Preparer

CV-90 (06/04)

CIVIL MINUTES - GENERAL

AB

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