A. N. et al v. Target Corporation et al
Filing
12
MINUTE ORDER IN CHAMBERS - COURT ORDER by Judge Percy Anderson remanding case to Los Angeles County Superior Court, Case number 20STCV35920. Case Terminated. Made JS-6. (See document for details) (mrgo)
JS-6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 20-11380 PA (RAOx)
Title
A. N. et al v. Target Corporation et al.
Present: The Honorable
Date
January 5, 2021
PERCY ANDERSON, UNITED STATES DISTRICT JUDGE
Gabby Garcia
Not Reported
N/A
Deputy Clerk
Court Reporter
Tape No.
Attorneys Present for Plaintiff:
Attorneys Present for Defendants:
None
None
Proceedings:
IN CHAMBERS - COURT ORDER
On December 21, 2020, the Court provisionally remanded this action because the Notice of
Removal is procedurally defective. (Dkt. 9.) It appeared that Defendant Pacific Cycle, Inc. had not
obtained the consent of co-defendant Target Corporation for the removal, nor had Target joined in the
removal. (Dkt. 1 (“Notice”) at 1 (“Defendant PACIFIC CYCLE, INC. (“Defendant Pacific Cycle”), by
and through its counsel, hereby removes the above entitled action filed by Plaintiffs”).) Therefore, the
Court remanded this action to Los Angeles Superior Court, Case No. 20STCV35920, for failure to
comply with the removal requirements of 28 U.S.C. § 1446. The Court stayed the remand until January
4, 2021 to afford Plaintiff an opportunity to waive the procedural defect. As of today’s date, Plaintiff
has not filed a Notice of Waiver of Procedural Defects, or any other response to the Court’s December
21st Order.
On December 22, 2020, Target filed a “Declaration of Martin D. Holly in Support of Removal to
Federal Court.” (Dkt. 10 (hereinafter “Consent to Removal”).) Holly represents Target in this action,
and declares that Target consents to the removal. (Id. at ¶4.) Holly also notes that he spoke with Pacific
Cycle’s counsel on December 3, 2020 regarding the removal. (Id. at ¶2.) At that time, Holly informed
Pacific Cycle’s counsel that “Target did not object to the removal and, in fact, supported it.” (Id.) For
the reasons discussed below, Target’s Consent to Removal is untimely and therefore cannot cure the
procedural defect in the Notice of Removal.
Federal courts are courts of limited jurisdiction, having subject matter jurisdiction only over
matters authorized by the Constitution and Congress. See, e.g., Kokkonen v. Guardian Life Ins. Co., 511
U.S. 375, 377 (1994). A suit filed in state court may be removed to federal court if the federal court
would have had original jurisdiction over the suit. 28 U.S.C. § 1441(a). “The removal statute is strictly
construed against removal jurisdiction, and the burden of establishing federal jurisdiction falls to the
party invoking the statute.” California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir.
2004) (citing Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir. 1988)). “The defendant
also has the burden of showing that it has complied with the procedural requirements for removal.”
Riggs v. Plaid Pantries, Inc., 233 F. Supp. 2d 1260, 1264 (D. Or. 2001).
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 20-11380 PA (RAOx)
Date
Title
January 5, 2021
A. N. et al v. Target Corporation et al.
In a multi-defendant action, a later-served defendant has a right of removal separate from that of
an earlier-served defendant. See 28 U.S.C. § 1446(b)(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). All proper defendants in an action must join or consent to a notice of removal.
See 28 U.S.C. § 1446(a); Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d 1261, 1266 (9th Cir. 1999),
superseded by statute on other grounds as stated in Abrego Abrego v. Dow Chem. Co., 443 F.3d 676,
681 (9th Cir. 2006); Parrino v. FHP, Inc., 146 F.3d 699, 703 (9th Cir. 1998) (“All defendants must join a
notice of removal.”). A defendant may join in or consent to the removal within the notice of removal or
in a separate document reflecting joinder or consent. See Proctor v. Vishay Intertechnology Inc., 584
F.3d 1208, 1225 (9th Cir. 2009). “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, 167 F.3d at 1266.
The Court concluded that the Notice of Removal is procedurally defective because Target, the
non-removing defendant, had not consented or joined. Pacific Cycle failed to adequately explain
Target’s absence, or any reason why Target’s joinder was not necessary. Thus, the issue before the
Court is whether Target’s Consent to Removal was sufficient to timely cure the procedural defect in the
Notice of Removal. The Court finds Palmeira v. CIT Bank, N.A. is instructive here. See 2017 U.S. Dist.
LEXIS 176246, at *8-17 (D. Haw. Oct. 24, 2017). In Palmeira, the Notice of Removal was silent as to
the absence of the mortgagee defendants, and the Notice was not amended before the expiration of the
statutory 30-day period for removing the case. The court found the Notice was procedurally defective.
Id. The mortgagee defendants filed their Consent and Joinder 17 days after the Notice of Removal was
filed and 34 days after defendant Colridge was served with the amended complaint. Id. The court
concluded that this did not timely cure the procedural defect, and therefore remanded the action to state
court. Id. The Palmeira court reasoned that lack of consent is a defect which must be cured within the
30-day removal period because (1) the defendant has the burden of establishing removal is proper,
(2) the consent of earlier-served co-defendants is required for removal, and (3) defects in removal
requirements must be cured within the 30-day period for removal, or removal is improper. Id. at *15.
In addition, the Palmeira court recognized that Congress did not intend for the removal statute to
“allow an indefinite period for removal.” Id. at *10 (citing H.R. Rep. No. 112-10, at 14 (2011)); see also
Chakra 5, Inc. v. City of Miami Beach, 968 F. Supp. 2d 1210, 1214 (S.D. Fla. 2013) (quoting H.R. Rep.
No. 112-10 and rejecting argument that there is no deadline for consent); Lewis v. HSBC Bank USA,
N.A., 2017 U.S. Dist. LEXIS 136843, at *7 (D. Haw. Aug. 25, 2017) (Section 1446(b)(2)(C) “does not
provide an open-ended opportunity to consent to removal at any time during the course of a case.”),
adopted by 2017 U.S. Dist. LEXIS 147310 (D. Haw. Sept. 12, 2017). Rather, Congress intended to
“provide[] for equal treatment of all defendants in their ability to obtain Federal jurisdiction over the
case against them without undermining the Federal interest in ensuring that defendants act with
reasonable promptness in invoking Federal jurisdiction.” Palmeira, 2017 U.S. Dist. LEXIS 176246, at
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 20-11380 PA (RAOx)
Date
Title
January 5, 2021
A. N. et al v. Target Corporation et al.
*10-11 (quoting H.R. Rep. No. 112-10, at 14). Thus, “[r]equiring a later-served defendant to obtain
consent within 30 days is not an unfair burden.” Id. at *16.
Other courts have similarly held that defendants must consent to removal within the 30-day
removal period of the last-served defendant. See, e.g., Sotelo v. Browning-Ferris Indus. of Cal., Inc.,
2020 U.S. Dist. LEXIS 224665, at *10-11 (C.D. Cal. Nov. 30, 2020) (“Here, Piste, the last-served
defendant, filed a joinder to Defendants’ notice of removal on September 8, 2020. This was outside the
30-day removal period, which began running when Piste was served on July 6, 2020. Thus, because the
notice of removal was procedurally defective and the attempt to cure the defect was untimely, the
requirements for removal were not met and remand is proper.”) (citations omitted); Zambrano v. New
Mexico Corr. Dep’t, 256 F. Supp. 3d 1179, 1186 (D.N.M. June 1, 2017) (“The Court finds unanimous
consent was required by April 26, 2017, which was thirty days after the last Defendants were served.
Defendant Hohman did not consent to removal until two days after this thirty-day window . . . Defendant
Hohman did not timely give consent to removal and, therefore, removal is procedurally defective.”);
Lopez v. Michael Weinig, Inc., 2020 U.S. Dist. LEXIS 128501 (C.D. Cal. July 17, 2020) (collecting
cases).
The Court finds that Target’s Consent to Removal does not timely cure the procedural defect in
the Notice of Removal. Target filed the declaration consenting to removal on December 22, 2020.
Target was served with the Summons and Complaint on November 13, 2020, and Pacific Cycle was
served on November 17, 2020. (Removal ¶¶2-3, ¶5 (“[N]o other Defendant has been named or served
with any summons or complaint in the State Action.”).) Thus, the Consent to Removal was filed well
outside the 30-day removal period that began running when the last defendant was served with the
Summons and Complaint. For these reasons, the Court concludes that the Notice of Removal is
procedurally defective and Defendants’ attempt to cure the defect was untimely. See 28 U.S.C. §
1446(a); Prize Frize, 167 F.3d at 1266. Accordingly, this action is remanded to Los Angeles Superior
Court, Case No. 20STCV35920, for failure to comply with the removal requirements of 28 U.S.C. §
1446. See 28 U.S.C. § 1447(c).
IT IS SO ORDERED.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
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