Allen v. Department of State Hospitals (DSH), et al

Filing 12

FINDINGS and RECOMMENDATIONS Recommending That Plaintiff's 5 Motion to Remand be Granted, signed by Magistrate Judge Erica P. Grosjean on 12/28/2016. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID ALLEN,

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Plaintiff,

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v.

1:16-cv-01329-AWI-EPG (PC)
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT PLAINTIFF’S
MOTION TO REMAND BE GRANTED
(ECF NO. 5)

DEPARTMENT OF STATE
HOSPITALS (DSH) - COALINGA, et al., OBJECTIONS, IF ANY, DUE WITHIN THIRTY
DAYS
Defendants.
I.

BACKGROUND

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This is a civil action filed by David Allen (APlaintiff@), a pretrial detainee proceeding

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pro se. This action was initiated by a civil complaint filed by Plaintiff in Fresno County

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Superior Court on February 16, 2016 (Case Number 16CECL01328). (ECF No. 2, p. 6).

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Plaintiff filed an amended complaint on June 20, 2016. (Id. at p. 58). On September 6, 2016,

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defendants State of California, Audrey King, Department of State Hospitals, and Department of

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State Hospitals-Coalinga State Hospital removed the case to federal court by filing a Notice of

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Removal of Action under 28 U.S.C. ' 1441. (Id. at p. 1).

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On September 29, 2016, Plaintiff filed a motion to remand the case to state court. (ECF

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No. 5). On October 14, 2016, defendants Audrey King, Department of State Hospitals, and the

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State of California (“Defendants”) filed an opposition to the motion. (ECF No. 7). On

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November 10, 2016, Plaintiff filed a reply. (ECF No. 8).
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II.

REMOVAL AND REMAND
Under 28 U.S.C. ' 1441(a), a defendant may remove from state court any action Aof

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which the district courts of the United States have original jurisdiction….@

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1441(a). District courts Ashall have original jurisdiction of all civil actions arising under the

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Constitution, laws, or treaties of the United States.@ 28 U.S.C. ' 1331. Removal of an action

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under 28 U.S.C. ' 1441(a) depends solely on the nature of the plaintiff's complaint, and a case

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is properly removed only if Aa right or immunity created by the Constitution or laws of the

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United States [constitutes] an element, and an essential one, of the plaintiff's cause of action.@

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Gully v. First National Bank in Meridian, 299 U.S. 109, 112 (1936).

28 U.S.C. §

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The plaintiff is the master of his or her own complaint and is free to ignore the federal

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cause of action and rest a claim solely on a state cause of action. Hunter v. Philip Morris USA,

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582 F.3d 1039, 1042 (9th Cir. 2009) (quotations and citation omitted). AThe presence or

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absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’

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which provides that federal jurisdiction exists only when a federal question is presented on the

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face of the plaintiff=s properly pleaded complaint.@ Caterpillar, Inc., v. Williams, 482 U.S. 386,

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392 (1987). AThe rule makes the plaintiff the master of the claim; he or she may avoid federal

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jurisdiction by exclusive reliance on state law.@ Id.

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28 U.S.C. § 1446 lays out the procedure for removal of civil actions. “The notice of

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removal of a civil action or proceeding shall be filed within 30 days after the receipt by the

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defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim

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for relief upon which such action or proceeding is based, or within 30 days after the service of

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summons upon the defendant if such initial pleading has then been filed in court and is not

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required to be served on the defendant, whichever period is shorter.” 28 U.S.C. § 1446(b)(1).

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“When a civil action is removed solely under section 1441(a), all defendants who have been

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properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. §

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1446(b)(2)(A). “Each defendant shall have 30 days after receipt by or service on that defendant

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of the initial pleading or summons described in paragraph (1) to file the notice of removal.”

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Section 1446(b)(2)(B).

“If defendants are served at different times, and a later-served
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defendant files a notice of removal, any earlier-served defendant may consent to the removal

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even though that earlier-served defendant did not previously initiate or consent to removal.”

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Section 1446(b)(2)(C).

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While “[t]he statutory time limit for removal petitions is merely a formal and modal

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requirement and is not jurisdictional,” “the time limit is mandatory and a timely objection to a

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late petition will defeat removal….” Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th

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Cir. 1980) (per curiam); Smith v. Mylan Inc., 761 F.3d 1042, 1045 (9th Cir. 2014); Kuxhausen

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v. BMW Fin. Servs. NA LLC, 707 F.3d 1136, 1142 n. 4 (9th Cir. 2013). Cf. Hernandez v. Six

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Flags Magic Mountain, Inc., 688 F. Supp. 560, 562 (C.D. Cal. 1988) (holding that in certain

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circumstances a court may deny a motion to remand even though the petition for removal was

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filed after the 30-day deadline).

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Because of the ACongressional purpose to restrict the jurisdiction of the federal courts

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on removal,@ the removal statute is strictly construed against removal. Shamrock Oil & Gas

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Corp. v. Sheets, 313 U.S. 100, 108-109 (1941); Moore-Thomas v. Alaska Airlines, Inc., 553

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F.3d 1241, 1244 (9th Cir. 2009). AAt the core of the federal judicial system is the principle that

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the federal courts are courts of limited jurisdiction.@ Libhart v. Santa Monica Dairy Co., 592

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F.2d 1062, 1064 (9th Cir. 1979).

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A plaintiff objecting to the removal may file a motion asking the district court to

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remand the case to state court. Caterpillar, Inc. v. Lewis, 519 U.S. 61, 69 (1996). AThe burden

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of establishing federal jurisdiction falls on the party invoking removal.@ Harris v. Provident

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Life and Accident Ins. Co., 26 F.3d 930, 932 (9th Cir.1994) (quoting Gould v. Mut. Life Ins.

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Co. of New York, 790 F.2d 769, 771 (9th Cir.1986)) (overruled on other grounds by Leeson v.

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Transamerica Disability Income Plan, 671 F.3d 969 (9th Cir. 2012)). “Federal jurisdiction

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must be rejected if there is any doubt as to the right of removal in the first instance.@ Gaus v.

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Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

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jurisdiction exists, even if no objection is made to removal, and even if both parties stipulate to

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federal jurisdiction.@ Rains v. Criterion Systems, Inc., 80 F.3d 339, 342 (9th Cir. 1996)

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(internal citations omitted).
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Courts Amust consider whether federal

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III.

PLAINTIFF’S MOTION FOR REMAND

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Plaintiff does not dispute that there is federal question at issue in his amended

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complaint. Instead, Plaintiff “asserts that removal occurred 11 days after the thirty day period

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for defendant DSH-Coalinga, 5 days after the thirty day period for defendant State of California

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and 127 days after the thirty day period for defendant State Department of State Hospitals.”

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(ECF No. 5-1, p. 4). Plaintiff does not mention how many days after the 30-day deadline

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removal occurred as to defendant King.

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According to Plaintiff, Plaintiff filed a First Amended Complaint on June 20, 2016. (Id.

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at p. 2). Defendant Department of State Hospitals was served with the initial complaint on May

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24, 2016. (Id.). Defendants Audrey King and the State of California were served with copies

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of the First Amended Complaint on July 22, 2016, and July 27, 2016, respectively. (Id.). On

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September 2, 2016, defendants Department of State Hospitals, State of California, and Audrey

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King removed the case to federal Court. (Id.).

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The objecting Defendants1 admit that they filed their notice of removal five business

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days after the 30-day deadline even for the most timely defendant.

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According to Defendants, there was a case management conference on August 29, 2016. (Id. at

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p. 2). Plaintiff informed the court clerk that he had served defendants Pam Ahlin, Audrey

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King, and Kamala Harris of the State of California. (Id.). The court clerk indicated that her

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records did not indicate such service, and did not indicate that Ms. Harris was a defendant.2

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(Id.). On August 30, 2016, Defendants’ counsel learned from her client that Audrey King had

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been served on July 22, 2016. (Id.). On that same day, Defendants’ counsel learned that the

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State of California had been served on July 27, 2016. (Id.). While the notice of removal was

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ready for filing on September 2, 2016, “[d]ue to the upcoming Labor Day weekend and a

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misunderstanding regarding the timeframe for a filing fee check, there was a delay in the filing

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of the notice of removal until September 6, 2016.” (Id. at p. 3). Defendant argues that the 30-

(ECF No. 7, p. 1).

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Defendant Department of State Hospitals-Coalinga State Hospital and Pam Ahlin do not appear
to have filed opposition to Plaintiff’s motion to remand.
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According to the Court’s docket, Kamela Harris is not a defendant.
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day deadline for filing a notice of removal is not jurisdictional, that a court may permit an

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untimely removal, and that there is no evidence that the delay in filing the notice of removal

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caused any prejudice to Plaintiff. (Id. at pgs. 2-3).

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IV.

DISCUSSION

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The Court will recommend granting Plaintiff’s motion to remand. Defendants admit

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that their notice of removal was filed five business days after the 30-day deadline. While

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Defendants attempt to explain away the late filing, and state that Plaintiff suffered no prejudice,

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their reliance on Hernandez and Federal Rule of Civil Procedure 61 is inapposite.

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As stated above, “the time limit is mandatory and a timely objection to a late petition

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will defeat removal….” Fristoe, 615 F.2d at 1212. Defendants have admitted that they missed

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the 30-day deadline by five business days, and they have not argued that Plaintiff’s motion to

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remand was untimely. Under the Court’s understanding of the law, the time limit is mandatory

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and must be enforced, even absent prejudice to Plaintiff.

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Defendants’ reliance on Hernandez is misplaced.

Even setting aside the fact that

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Hernandez is a very dated case from another district, the situations are not analogous. While

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the Hernandez Court did state that it could consider an untimely petition for removal, it also

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stated that “allowing an untimely petition is clearly the exception and not the rule.” 688 F.

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Supp. at 562. Additionally, the Hernandez Court noted that the defendant “arguably satisfied

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the thirty day requirement in the statute when it answered the federal complaint within the

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thirty day period, thereby manifesting its intent to join in the removal.

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plaintiffs were on notice that defendant’s consent [to removal] was forthcoming.” Id. The

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Hernandez Court also noted that “[a]t all times relevant, [the defendant] was ready and willing

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to consent to removal if and when it was served. In fact, it appears that the confusion over

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service may have resulted from improper service by plaintiffs on [the defendant’s] personnel

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who were not authorized to receive service.” Id. at 563.

At a minimum,

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In this case, there is no allegation that Defendants satisfied the thirty day requirement

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by filing an answer that manifested an intent to join in a petition for removal. Additionally,

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there is no allegation that Plaintiff failed to properly serve either the complaint or the amended
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complaint. Accordingly, this case is distinguishable from Hernandez.

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Defendants also seem to state that the Court must disregard their error under Federal

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Rule of Civil Procedure 61 because Plaintiff suffered no prejudice. However, Defendants do

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not cite to any authority, and the Court is not aware of any authority, that requires the Court to

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(or even suggests that the Court should) disregard tardy filings under Rule 61.
Accordingly, the Court finds that there was a timely objection to Defendants’ late filed

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notice of removal, and that Plaintiff’s motion to remand should be granted.

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The Court notes that there may be an issue regarding whether every defendant who has

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been served consented to removal as required by section 1446(b)(2)(A). However, as the

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parties did not raise this issue, the Court will not address it at this time.

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V.

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CONCLUSION AND RECOMMENDATIONS
Based on the foregoing, the Court finds that the case should be remanded. Accordingly,

IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s motion to remand, filed on September 29, 2016, be GRANTED;

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2. This action be remanded to Fresno County Superior Court; and

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3. The Clerk of Court be directed to close the case and serve notice of the remand.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty

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days after being served with these findings and recommendations, any party may file written

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objections with the court. Such a document should be captioned "Objections to Magistrate

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Judge's Findings and Recommendations." Any reply to the objections shall be served and filed

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within ten days after service of the objections.

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The parties are advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

December 28, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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