Francisco Gomez v. Mitco West, Inc. et al

Filing 12

MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: The Court GRANTS Plaintiff's Motion for Remand to State Court 7 . Case Remanded to Los Angeles Superior Court, Case No. BC615283. ( MD JS-6. Case Terminated. ) Court Reporter: Not Present. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

‘O’ JS-6

Case No.

2:16-cv-03394-CAS-E

Title

FRANCISCO GOMEZ V. GLOBAL VIDEO GAMES, ET AL.

Present: The Honorable

Date

July 26, 2016

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Not Present
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

(IN CHAMBERS) - PLAINTIFF’S MOTION FOR REMAND TO
STATE COURT (Dkt. 7, filed June 15, 2016)

The 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.
I.

INTRODUCTION & BACKGROUND

On 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.
On June 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 the Court.
II.

LEGAL STANDARD

A 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
CV-90 (06/04)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’ JS-6

Case No.

2:16-cv-03394-CAS-E

July 26, 2016

Title

FRANCISCO GOMEZ V. GLOBAL VIDEO GAMES, ET AL.

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).
Under 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, § 2:905.2.
If the 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.
III.

ANALYSIS

As 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.
In its 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,
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’ JS-6

Case No.

2:16-cv-03394-CAS-E

July 26, 2016

Title

FRANCISCO GOMEZ V. GLOBAL VIDEO GAMES, ET AL.

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.
Nonetheless, 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 and Through Mother
of Student A v. Metcho, 710 F.Supp. 267, 268–69 (N.D. Cal. 1989) (Schwarzer, J.)
(remanding where notice of removal filed two days late due to mistaken use of California
Procedural Rules to calculate deadline to file notice of removal, as opposed to Federal
Rules of Civil Procedure).
Second, the Court is unpersuaded by Mitco’s claim of excusable neglect. Plaintiff
has submitted a letter, sent by Mitco to plaintiff, in which Mitco demanded that plaintiff
voluntarily dismiss this action. Dkt. 10, Ex. 1. This letter is dated April 14, 2016—i.e.,
three days before April 17, 2016. See id. Thus, while Mitco’s counsel may have been
confused with regard to the date on which Mitco was served, it appears based on this
letter that Mitco was aware as early as April 14, 2016––and possibly earlier—that it had
been served. Accordingly, Mitco’s claim of excusable neglect is unavailing.
For the foregoing reasons, the Court finds that Mitco’s notice of removal was
untimely. The Court, therefore, GRANTS plaintiff’s motion to remand.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:16-cv-03394-CAS-E

Title

FRANCISCO GOMEZ V. GLOBAL VIDEO GAMES, ET AL.

IV.

Date

‘O’ JS-6

July 26, 2016

CONCLUSION

In accordance with the foregoing, the Court GRANTS plaintiff’s motion to remand
this action to state court.1
IT IS SO ORDERED
00
Initials of Preparer

:

00

CMJ

1

Plaintiff also requests that the Court impose sanctions on Mitco in the form of
attorneys’ fees pursuant to 28 U.S.C. §1447(c). “Absent unusual circumstances, courts
may award attorney’s fees under § 1447(c) only where the removing party lacked an
objectively reasonable basis for seeking removal. Conversely, when an objectively
reasonable basis exists, fees should be denied.” Martin v. Franklin Capital Corp., 546
U.S. 132, 141 (2005). Here, the Court cannot find that Mitco lacked an “objectively
reasonable basis for seeking removal.” Rather, while the Court finds that Mitco’s
removal was procedurally defective, as noted above, this defect appears to have been the
result of an inadvertent error. See also DeMichele, 2012 WL 1980828, at *5 (denying
request for attorneys’ fees pursuant to section 1447(c) where “Defendant’s counsel
simply made a mistake in calculating the deadline for filing the Notice [of Removal]”).
Moreover, plaintiff’s complaint contains one claim brought under the federal Americans
with Disabilities Act. Thus, Mitco had an objectively reasonable basis for concluding
that federal question jurisdiction existed in this action. Accordingly, the Court DENIES
plaintiff’s request for attorneys’ fees.
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