Sosa v. County of Fresno

Filing 10

ORDER DENYING Motion to Dismiss and REMANDING CASE to Fresno County Superior Court 6 , signed by District Judge Anthony W. Ishii on 2/3/14: Certified Copy of remand order sent to other court. (CASE CLOSED)(Hellings, J)

1

UNITED STATES DISTRICT COURT

2

EASTERN DISTRICT OF CALIFORNIA

3
4

MARISELLA SOSA,

5
6
7
8
9

CASE NO. 1:13-CV-2027 AWI GSA

Plaintiff
ORDER DENYING MOTION TO
DISMISS AND REMANDING CASE

v.
COUNTY OF FRESNO,
CORRECTIONAL OFFICER JESSICA
KAMPEN, and DOES 1 through 20,
inclusive,

(Doc. No. 6)

Defendants

10

On December 11, 2014, the County of Fresno removed this matter from the Fresno County
11

Superior Court. The complaint that was removed was the Third Amended Complaint (“TAC”).

12
On December 20, 2014, the County filed a motion to dismiss the TAC. On January 20, 2014,
13
Plaintiff filed an opposition. As part of the opposition, Plaintiff states that, although the County of
14
Fresno and Officer Kampen appear in the style of the TAC, neither the County nor Officer
15

Kampen are actually parties. That is, “The TAC does not name the County as a defendant.” Doc.

16
No. 7 at 2:6-8. Because the County is not a party, Plaintiff states that removal was improper and
17
indicates that the Court should remand the case. See id. at 2:20-3:13. In reply, the County states
18
that it was served with the TAC and that its name still appears, so it reasonably believed it was a
19
party. However, the County states that the Plaintiff is master of her complaint and if Plaintiff
20
states that the County is not a party, then the Court can rely on that representation and remand this
21
case back to state court. The County argues that the remand should be without prejudice to the
22
ability of any subsequently named Doe defendant to remove to this Court.
23
Discussion
24
The TAC is somewhat ambiguous. There are allegations that mention the County, but the
25
relief requested is only against Doe Defendants. However, the County is correct that the Plaintiff
26
is the master of her complaint. See Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). The
27
Court will take Plaintiff at her word and hold that the County is not a party to the TAC. See Doc.
28

1

No. 7 at 2:6-8. Since the County is not a party, let alone a defendant, the County could not

2

remove this case. See 28 U.S.C. § 1441; Housing Auth. of Atlanta v. Millwood, 472 F.2d 268,

3

272 (5th Cir. 1973); Gross v. Deberardinis, 722 F.Supp.2d 532, 534-35 (D. Del. 2010); Newman

4

& Cahn, LLP v. Sharp, 388 F.Supp.2d 115, 117 (E.D. N.Y. 2005). Removal by a non-party does

5

not invoke a district court’s removal jurisdiction. See Housing, 472 F.2d at 272; Juliano v.

6

Citigroup, N.A., 626 F.Supp.2d 317, 319 (E.D. N.Y. 2009).

7

Because all doubts are construed against removal jurisdiction, Geographic Expeditions,

8

Inc. v. Estate of Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010), and the County is not a party to the

9

TAC, see Doc. No. 7 at 2:6-8, this Court’s jurisdiction has not been invoked. See Housing, 472

10

F.2d at 272; Juliano, 626 F.Supp.2d at 319. As a result, the Court must remand this matter. 28

11

U.S.C. ' 1447(c); Gibson v. Chrysler Corp., 261 F.3d 927, 932 (9th Cir. 2001); Bruns v. NCUA,

12

122 F.3d 1251, 1257 (9th Cir. 1997). However, because the County’s confusion was

13

understandable, the Court will not impose sanctions for wrongful removal.1 See 28 U.S.C. §

14

1447(c); Martin v. Franklin Capital Corp., 546 U.S. 132, 136 (2005) (fees under § 1447(c) are

15

discretionary).

16
17

ORDER

18

Therefore, IT IS HEREBY ORDERED that:

19

1.

The previously set hearing date of February 3, 2014, is VACATED;

20

2.

Defendant’s motion to dismiss is DENIED as moot; and

21

3.

Pursuant to 28 U.S.C. § 1447(c), this case is REMANDED and the Clerk shall return this

22

case to the Fresno County Superior Court forthwith.

23
24
25

IT IS SO ORDERED.
Dated: February 3, 2014
SENIOR DISTRICT JUDGE

26
27
28

1

Because the County’s mistake was reasonable, no prejudice to a subsequent removal is intended.

2