Michele Petersen v. County of Stanislaus et al

Filing 25

ORDER Extending Time To File Amended Complaint (Re: Response To O.S.C. Re: Dismissal Of Action) (Docs. 22 , 23 ), signed by District Judge Anthony W. Ishii on 1/12/2013. Plaintiff shall file an amended complaint by 4:00 p.m. on Thursday, February 28, 2013.(Amended Complaint due by 2/28/2013) (Fahrney, E)

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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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MICHELE PETERSEN,
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Plaintiff,
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v.
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COUNTY OF STANISLAUS; CHRISTINE )
APPLEGATE; KIM VIEIRA; BERGEN
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FILGAS; GEORGE MEDINE; DOE 1;
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DOE 2; DOE 3; DOE 4; DOES 5
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through 25, inclusive,
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Defendants.
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____________________________________)

1:12-cv-00933-AWI-BAM
ORDER EXTENDING TIME TO
FILE AMENDED COMPLAINT
(RE: RESPONSE TO O.S.C. RE:
DISMISSAL OF ACTION)
(Docs. 22, 23)

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I. INTRODUCTION

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On November 20, 2012, the Court issued an order to show cause why this case should not be

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dismissed for plaintiff Michele Petersen’s (“Plaintiff’s”) failure to file an amended complaint in

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accordance with the Court’s October 12, 2012 order dismissing her original complaint with leave

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to amend. On December 17, 2012, Plaintiff filed her response to the Court’s November 20, 2012

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order to show cause re: dismissal of the action. For reasons discussed below, the Court shall grant

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Plaintiff an extension of the time to file an amended complaint to Thursday, February 28, 2013.

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II. FACTS AND PROCEDURAL BACKGROUND

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The Court refers the parties to previous orders for a complete chronology of the proceedings. On

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May 3, 2012, Plaintiff filed her complaint in Stanislaus County Superior Court against defendants

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County of Stanislaus, Christine Applegate, Kym Vieira (erroneously sued as Kim Vieira), Bergen

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Filgas, George Medine (collectively “Defendants”), Doe 1, Doe 2, Doe 3, Doe 4 and Does 5 through

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25, asserting nine causes of action for employment discrimination, retaliation, harassment,

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deprivation of civil rights, intentional infliction of emotional distress, breach of contract, breach of

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the implied covenant of good faith and fair dealing, negligent supervision and defamation. On June

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8, 2012, Defendants removed the action to this Court pursuant to 28 U.S.C. §§ 1331 and 1441(b).

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On June 15, 2012, Defendants filed a motion to dismiss the complaint pursuant to Federal

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Rules of Civil Procedure 12(b)(6) and 12(e). Plaintiff did not file a written opposition to

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Defendants’ motion to dismiss. Instead, on July 6, 2012, Plaintiff filed a motion with the Magistrate

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Judge to remand the action to state court. On October 12, 2012, the Court granted the motion to

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dismiss the complaint in its entirety and directed Plaintiff to file an amended complaint within thirty

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days of entry of the order. No amended complaint was filed by Plaintiff in the time allotted. Based

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on the Court’s October 12, 2012 order, the Magistrate Judge denied the motion to remand as moot.

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On November 20, 2012, the Court issued an order directing Plaintiff to show cause in writing

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by 4:00 p.m. on Friday, December 21, 2012, why no amended complaint had been filed and why the

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action should not be dismissed for failure to comply with the Court’s October 12, 2012 order. The

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Court cautioned that a failure to show cause or otherwise respond to the November 20, 2012 order

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would result in a dismissal of the action with prejudice as against as against all defendants. On

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December 17, 2012, Plaintiff filed her response to the Court’s November 20, 2012 order.

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III. DISCUSSION

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In her December 17, 2012 response to the Court’s November 20, 2012 order to show cause re:

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dismissal of the action, Plaintiff explains she did not (1) file a written opposition to Defendants’ June

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15, 2012 motion to dismiss the original complaint or (2) amend the pleadings in accordance with the

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Court’s October 12, 2012 order dismissing the complaint with leave to amend because she believed

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to do so would constitute a waiver of her right to seek a remand of the action. Plaintiff’s concerns

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are unfounded, to say the least. “[T]he filing of a pleading in federal court does not [by itself]

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constitute a waiver of the right to seek . . . remand by the party having filed the pleading.” In re

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Drauschak, 481 B.R. 330, 349 (E.D.Pa. 2012). Instead, “[f]ederal courts consider a number of

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factors in determining whether a party has waived its right to seek to seek remand.” Koehnen v.

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Herald Fire Ins. Co., 89 F.3d 525, 528 (8th Cir.1996). These include: “1) The nature and gravity

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of the defect in removal; [¶] 2) Principles of comity and judicial economy; [¶] 3) Relative prejudice

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to the parties, including deference to the plaintiff’s choice of forum; [¶] [and] 4) Actions taken by

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the party seeking remand that imply it has affirmatively sought the federal court’s intervention.”

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Midwestern Distribution, Inc. v. Paris Motor Freight, 563 F.Supp. 489, 493 (D.C.Ark. 1983).

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Although no one factor is dispositive, only if a party “engages in affirmative activity in federal court

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[will it] typically waive[ ] the right to seek a remand[.]” Koehnen, supra, 89 F.3d at 528 (citing

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Financial Timing Pubs., Inc. v. Compugraphic Corp., 893 F.2d 936, 940 (8th Cir. 1990)).1

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Seeking leave of court to file an amended complaint through the filing of a formal motion

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for leave to file an amended pleading is, for instance, an affirmative action through which a plaintiff

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consents to the jurisdiction of the district court. Koehnen, supra, 89 F.3d at 528. Similarly, a

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Importantly, a plaintiff may only be deemed to have waived procedural challenges to the
removal process. Lozada v. Regal Ware, Inc., 564 F.Supp.2d 715, 717 (W.D.Tex. 2008).
“[O]bjections [to removal] that are based on a court’s lack of subject-matter jurisdiction may [never]
be forfeited or waived by any party.” Busby v. Capital One, N.A., 841 F.Supp.2d 49, 54 (D.D.C.
2012) (citing Arbaugh v. Y&H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006)).

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plaintiff who “participate[s] without objection in a pretrial conference, engage[s] in discovery

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pursuant to the Federal Rules of Civil Procedure for over a year, subject[s] itself to the authority of

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a federal magistrate, and invoke[s] the authority of the district court by appealing a magistrate’s

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order” will have waived the right to contest any procedural defects in the removal process. Financial

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Timing Pubs., Inc., supra, 893 F.2d at 940. By contrast, a plaintiff does not waive its right to seek

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a remand simply by filing a substantive opposition to a removing defendant’s Rule 12 motion to

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dismiss the complaint. See Graphic Communications Local 1B Health & Welfare Fund “A” v. CVS

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Caremark Corporation, slip copy, 2011 WL 5826687 (D.Minn. 2011) (Graphic Communications),

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at *9 (“[D]efending against a motion to dismiss [does not] equate[ ] to plaintiffs acquiescing to the

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jurisdiction of this Court and waiving their right to remand, especially when defendants, and not

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plaintiffs, were the parties seeking the affirmative relief”); Peace v. Estate of Sorensen, 2008 WL

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2676367 (C.D.Cal. 2008) (unpublished), at *4 (“A plaintiff’s opposition to her adversary’s efforts

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to seek relief from the court can hardly be deemed to be acquiescence to the court’s jurisdiction”).

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Accordingly, Plaintiff would not have waived her right to seek a remand by filing a written

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opposition to Defendants’ June 15, 2012 Rule 12 motion to dismiss, as Plaintiff asserts. A plaintiff

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also does not waive its right to seek a remand by filing an amended complaint where such filing is

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undertaken as a matter of right pursuant to a court order dismissing a previously operative complaint

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with leave to amend. See Graphic Communications, supra, 2011 WL 5826687 at *1, *9 (plaintiffs

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filed second amended complaint in response to court order dismissing first amended complaint with

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leave to re-plead; “unlike filing a motion to amend, the filing [of] the Second Amended Complaint

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did not amount to affirmative conduct designed to trigger the jurisdiction of this Court. Rather, the

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amended pleading was an extension of plaintiffs’ defense against defendants’ affirmative attempts

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to dismiss the action and was invited by the Court”); see also Johnson v. USAA Cas. Ins. Co.,

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_F.Supp.2d_, 2012 WL 5233901 (M.D.Fla. 2012), at *2 (filing of case management report did not

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constitute affirmative action sufficient to waive the right to seek remand where report was required

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to be filed by the trial court’s standing order). Accordingly, Plaintiff would not have waived her

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right to seek a remand by filing an amended complaint in response to the Court’s October 12, 2012

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order dismissing the complaint with leave to amend, as Plaintiff likewise asserts. Plaintiff’s refusal

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to oppose Defendants’ motion to dismiss or amend the complaint was simply unjustified.

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The Court acknowledges Plaintiff, as the party seeking to remand the case to state court,

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would have preferred to have had her July 6, 2012 motion to remand resolved by the Court before

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Defendants’ June 15, 2012 motion to dismiss the complaint. Ordinarily, the Court would have been

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inclined to agree with Plaintiff the motion to remand should have been addressed before the motion

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to dismiss, if only because a district court must first determine whether it has jurisdiction to hear a

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case before it may address the case on the merits. See Steel Co. v. Citizens for a Better Environment,

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523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). This means a court should first

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address a motion to remand when a motion to remand and a motion to dismiss are simultaneously

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pending, as was the case here. The Court did not follow this order of progression due to a clerical

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oversight, but hereby places the parties on notice that it shall follow such order in future proceedings.

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V. DISPOSITION

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Based on the foregoing, Plaintiff shall file an amended complaint by 4:00 p.m. on Thursday,

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February 28, 2013. Failure to file an amended complaint in accordance with the foregoing time

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frame shall result in a dismissal of the action with prejudice as against all defendants.

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IT IS SO ORDERED.

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Dated:
0m8i78

January 12, 2013
SENIOR DISTRICT JUDGE

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