Miller v. Adonis, et al.

Filing 18

ORDER Denying As Moot Removing Defendants' Request To Excuse Them From Requirement Of 1446(a), ORDER Denying Defendants' Request For The Court To Issue A Writ Of Certiorari Pursuant To 1447(b) (Docs. 1 , 4 ), signed by Magistrate Judge Gary S. Austin on 10/23/2012. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHARLES A. MILLER,

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Plaintiff,

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1:12-cv-00353-LJO-GSA-PC
ORDER DENYING AS MOOT
REMOVING DEFENDANTS’ REQUEST
TO EXCUSE THEM FROM
REQUIREMENT OF § 1446(a)

v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION,
et al.,

ORDER DENYING DEFENDANTS’
REQUEST FOR THE COURT TO ISSUE A
WRIT OF CERTIORARI PURSUANT TO §
1447(b)

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Defendants.
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(Docs. 1, 4.)
/

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I.

RELEVANT PROCEDURAL HISTORY

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This is a civil action filed by Charles A. Miller (“Plaintiff”), a state prisoner proceeding pro

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se. This action was initiated by civil complaint filed by Plaintiff in the Fresno County Superior

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Court on June 15, 2010 (Case #10CECG02100). On March 8, 2012, defendants Adonis, Griffith,

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Gutierrez, Igbinosa, Medina, and Mendez (“Removing Defendants”) removed the case to federal

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court by filing a Notice of Removal of Action pursuant to 28 U.S.C. § 1441(a) (federal question).

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(Doc. 1.) The Removing Defendants assert that defendant Medina was served with a copy of the

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complaint on February 14, 2012; defendant Mendez was served on February 16, 2012; and

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defendants Adonis, Griffith, Gutierrez, and Igbinosa were served on February 21, 2012. (Exh. B to

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Notice of Removal, Doc. 1-7.) On March 8, 2012, defendants California Department of Corrections
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and Rehabilitation ("CDCR"), Ahmed, Anderson, Chudy, Duenas, Eddings, Pascual, and Walker

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(“Consenting Defendants”) joined in the Notice of Removal of Action. (Doc. 4.)

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The Removing Defendants request that the Court excuse them from § 1446(a)’s requirement

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to submit copies of the entire state-court record, and they request that the Court issue a writ of

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certiorari pursuant to 28 U.S.C. § 1447(b), to obtain the entire state-court file. (Doc. 1.) Consenting

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Defendants have joined in the request for issuance of a writ of certiorari. (Docs. 1, 4.)

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II.

DEFENDANTS’ REQUESTS – 28 U.S.C. §§ 1446(a), 1447(b)

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28 U.S.C. § 1446(a) requires a notice of removal to contain “a short and plain statement of

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the grounds for removal, together with a copy of all process, pleadings, and orders served upon such

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defendant or defendants in such action.” Under 28 U.S.C. § 1447(b), the Court "may require the

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removing party to file with its clerk copies of all records and proceedings in such State court or may

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cause the same to be brought before it by writ of certiorari issued to such State court.”

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The Removing Defendants request to be excused from the requirement of § 1446(a) to file

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copies of “all process, pleadings, and orders” from the state action, asserting that the state-action

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papers are voluminous and the file contains many pleadings, orders, and other documents that have

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been filed or served on the parties since the action was commenced. The Removing Defendants have

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provided as Exhibit C a copy of the docket for the state-court action, with entries from June 15,

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2010, when the case was filed, through December 21, 2011. (Exh. C to Notice of Removal, Doc.

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1-8.) All of the Defendants have requested the Court to issue a writ of certiorari to the Fresno

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County Superior Court pursuant to § 1447(b), to obtain the entire state-action file.

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Discussion

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The Removing Defendants request to be excused from § 1446(a)’s requirement to submit

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copies of all of the documents from the state-court record. However, § 1446(a) does not require the

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Removing Defendants to submit copies of all of the state-court documents. “[R]emoval is

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accomplished merely by a defendant filing a verified petition stating the facts which entitled him

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to removal, together with a copy of all process, pleadings, and orders served upon him in the action,

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. . .” Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064-65 (9th Cir. 1979) (citing 28 U.S.C.

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§ 1446); 14 Wright, Miller and Cooper, Federal Practice and Procedure, § 3730, p. 715) (emphasis
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added). Thus, the Removing Defendants were only required to submit copies of documents which

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had been served upon the Removing Defendants during the state-court action. Therefore, the

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Removing Defendants’ request to be excused from submitting the entire state-court record pursuant

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to § 1446(a) is without basis and shall be denied as moot.

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The Court has no evidence that the Removing Defendants did not comply with the

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requirement of § 1446(a) to submit copies of the documents that had been served upon them in the

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state-court action. The Removing Defendants submitted, with the Notice of Removal, a copy of the

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Complaint filed on June 15, 2010, and copies of the returned summonses served upon them on

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February 14, 2012, February 16, 2012, and February 21, 2012. (Exhs. A-F to Notice of Removal,

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Docs. 1-2, 1-3, 1-4, 1-5, 1-6, 1-7.) The Court has no evidence that the Removing Defendants were

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served copies of any other documents in the state-court action before the case was removed.

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With respect to the request for the Court to issue a writ of certiorari pursuant to § 1447(b),

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the Court declines to do so at this stage of the proceedings. A review of the record shows that the

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Court has sufficient documentation to determine jurisdiction. See Covington v. Indemnity Ins. Co.

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of N. Am., 251 F.2d 930, 932–933 (5th Cir.1958) (describing failure to attach state court documents

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as mere “modal and formal” defect that was not jurisdictional); see also Destfino v. Reiswig, 630

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F.3d 952, 957 (9th Cir.2011) (in context of joinder of defendants, “a procedural defect existing at

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the time of removal but cured prior to entry of judgment does not warrant reversal and remand of the

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matter to state court”) (quoting Soliman v. Phillip Morris, Inc., 311 F.3d 966, 970 (9th Cir.2002)).

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Therefore, Defendants’ request for the Court to issue a writ of certiorari shall be denied, without

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prejudice.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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The Removing Defendants’ request to be excused from § 1446(a)’s requirement is
DENIED as moot; and

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///

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Defendants’ request for the court to issue a writ of certiorari to the Fresno County

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Superior Court pursuant to § 1447(b), filed on March 8, 2012, is DENIED without

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prejudice.

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IT IS SO ORDERED.
Dated:
6i0kij

October 23, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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