Lawrence Straccia v. Walmart Inc.
Order GRANTING Motion to Remand (Dkt. No. #16 ) by Judge Dale S. Fischer. See order for specifics. MD JS-6. Case Terminated. (lom)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CV 20-6552 DSF (JEMx)
Order GRANTING Motion to
Remand (Dkt. No. 16)
Plaintiff Lawrence Straccia moves to remand this because the case
was removed beyond the one-year deadline. The Court deems this
matter appropriate for decision without oral argument. See Fed. R.
Civ. P. 78; Local Rule 7-15. The hearing set for September 21, 2020, is
removed from the Court’s calendar.
A case may not be removed under subsection (b)(3) on the
basis of jurisdiction conferred by section 1332 more than 1
year after commencement of the action, unless the district
court finds that the plaintiff has acted in bad faith in order
to prevent a defendant from removing the action.
28 U.S.C. § 1446(c)(1).
Defendant argues that removal was allowed because Plaintiff acted
in bad faith in order to prevent removal within one year by failing to
serve the complaint within one year. Plaintiff’s counsel filed a
declaration stating that he did not wait to serve Defendant in order to
prevent removal. Instead, Plaintiff’s counsel states that (1) he wanted
to get more information about Plaintiff’s treatment before serving the
complaint, (2) he partially lost track of the litigation due to
understaffing in his office, and (3) it did not occur to him that
Defendant would remove the case because he had litigated several
similar cases against Defendant in the past and Defendant had not
removed despite the presence of diversity jurisdiction. Defendant
essentially argues that the failure to serve the complaint and the
failure to serve an order reassigning the case in state court are
sufficient circumstantial evidence to infer bad faith. Defendant does
not contest that it had failed to remove previous similar premises
liability cases litigated against Plaintiff’s counsel.
The Court finds Defendant has not established bad faith. While the
failure to serve within one year might be sufficient to establish a prima
facie showing of bad faith, Plaintiff’s counsel has provided an
explanation of the failure to serve that Defendant fails to rebut in any
In a vacuum it may sound unlikely that counsel would fail to serve
for such a long period, but in the Court’s experience plaintiffs’ lawyers
often do not prosecute their cases until prodded to do so by the Court.
This is even true in federal court despite the 90-day (formerly 120-day)
time limit for service of process explicitly set out in the Federal Rules of
Civil Procedure. Unfortunately, it is also not at all unbelievable that
Plaintiff’s counsel failed to prosecute in part because his office lost
track of the case. The Court has found that this kind of administrative
failure is all too common in law offices. Combined with Plaintiff’s
counsel’s evidence-based belief that Defendant was unlikely to remove
the case, the Court cannot find that Plaintiff failed to serve with the
intent to avoid removal.
The motion to remand is GRANTED. The case is REMANDED to
the Superior Court of California, County of Los Angeles.
IT IS SO ORDERED.
Date: September 14, 2020
Dale S. Fischer
United States District Judge
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