Jones v. Walmart Inc.

Filing 17

ORDER DENYING Defendant's 7 Motion for Extension of Time; ORDER GRANTING Plaintiff's 6 Motion to Remand back to Tulare County Superior Court, signed by District Judge Dale A. Drozd on 9/6/2020. CASE CLOSED(Copy of this order mail to Tulare County Superior Court, 221 S. Mooney Blvd, Room 102, Visalia, CA 93291)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHEYENNE JONES, individually and as
successor-in-interest to the estate of Rocky
Paul Jones,

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Plaintiff,
v.

No. 1:20-cv-00729-DAD-BAM

ORDER DENYING DEFENDANT’S
MOTION FOR EXTENSION OF TIME AND
GRANTING PLAINTIFF’S MOTION TO
REMAND

WALMART, INC.,
(Doc. Nos. 6, 7)
Defendant.

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This matter is before the court on defendant Walmart, Inc.’s motion for an extension of

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time to file its notice of removal (Doc. No. 7) and plaintiff Cheyenne Jones’ motion to remand

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(Doc. No. 6). Pursuant to General Order No. 617 addressing the public health emergency posed

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by the coronavirus pandemic, on May 29, 2020, the court took this matter under submission to be

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decided on the papers, without holding a hearing. The court has considered the parties’ briefs

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and, for the reasons set forth below, will deny defendant’s motion for extension of time and grant

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plaintiff’s motion to remand.

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On February 25, 2020, plaintiff filed the complaint against defendant in the Tulare County

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Superior Court. (Doc. No. 1-1.) On May 22, 2020, defendant filed its notice of removal in this

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federal court on the basis of diversity jurisdiction. (Doc. No. 1 at 1.) Six days after filing its

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notice of removal, on May 28, 2020, defendant filed the pending motion for an extension of time
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to file its notice of removal. (Doc. No. 7.) On June 23, 2020, plaintiff filed her opposition to

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defendant’s motion for an extension of time, and on July 1, 2020, defendant filed its reply thereto.

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(Doc. Nos. 12, 13.) On May 28, 2020, plaintiff filed a motion to remand, arguing that

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defendant’s notice of removal failed to comply with the thirty-day time limit set forth in 28

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U.S.C. § 1446(b).1 (Doc. No. 6 at 1.) On June 18, 2020, defendant filed its opposition to

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plaintiff’s motion to remand. (Doc. No. 11.)
The court will first consider defendant’s motion for an extension of time. Defendant

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contends that its untimely filing of the notice of removal was due to “the mistake and

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inadvertence of Walmart’s Central Intake Department,” which never routed plaintiff’s complaint

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and proof of service to Walmart’s legal department. (Doc. No. 7-1 at 2.) The confusion

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purportedly arose from the naming of the file containing plaintiff’s complaint and proof of service

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in Walmart’s intake system, resulting in it being associated with a previous internal file and

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deleted as a duplicate. (See Doc. No. 7-2 at 2.) Defendant contends that it requested an extension

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of time “as soon as it became aware of the need for additional time, which was after the deadline

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had expired.” (Id.) Defendant argues that the court may grant its motion to extend time “if the

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motion shows proof of good cause and if the failure to act timely was the result of excusable

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neglect.” (Doc. No. 7-1 at 2.)

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In Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507

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U.S. 380, 395 (1993) the Supreme Court analyzed excusable neglect in the context of Federal

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Rule of Bankruptcy Procedure 9006(b)(1) and identified a number of relevant factors in assessing

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a party’s omission. The Ninth Circuit has thereafter examined these same factors to determine

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whether a neglectful party is excused from meeting a filing deadline set by a rule of procedure

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that expressly states that an untimely filing could be allowed “where the [party’s] failure to act

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was the result of ‘excusable neglect.’” See Pincay v. Andrews, 389 F.3d 853 (9th Cir. 2004)

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Plaintiff cites 28 U.S.C. § 1447(c) as the statute that establishes a thirty-day limit for
defendant’s filing of a notice of removal (see Doc. No. 6-1), but that statute provision establishes
the time limit on filing motions for remand. The deadline for filing notices of removal is set by
28 U.S.C. § 1446(b). Plaintiff’s confusion does not, however, affect the court’s analysis.

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(considering Fed. R. App. P. 4(a)); Kettle Range Conservation Grp. v. U.S. Forest Serv., 8 Fed.

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App’x 729 (9th Cir. 2001)2 (assessing Fed. R. Civ. P. 6(b)). In granting extensions of time to

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allow untimely filings as a result of mistake or inadvertence, courts have been “persuaded in part

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by the fact that the phrase ‘excusable neglect’ . . . is understood to be a somewhat elastic

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concept.” 88 Int’l Inc. v. Hartford Cas. Ins. Co., No. cv-13-09442-DMG-SHx, 2014 WL

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12607693, at *2 (C.D. Cal. Mar. 17, 2014) (quoting Pioneer, 507 U.S. at 381).

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In contrast, the removal statute includes no “excusable neglect” provision. See 28 U.S.C.

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§ 1446(b). “[C]ourts in the Ninth Circuit uniformly hold that the 30-day time limit prescribed by

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28 U.S.C. § 1446(b) is mandatory, unless [the] [p]laintiff waives the defect or is estopped from

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asserting it.” 88 Int’l Inc., 2014 WL 12607693, at *2 (internal quotation marks and citation

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omitted); see also Lewis v. City of Fresno, 627 F. Supp. 2d 1179, 1182 (E.D. Cal. 2008) (“The

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time limits [for removal petitions] cannot be extended by continuance or stipulation.”). Thus, it

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has been recognized that the thirty-day time limit to file a notice of removal is a “formal and

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modal requirement” and “a timely objection to a late petition will defeat removal.” Fristoe v.

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Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir. 1980); see also Gomez v. Global Video

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Games, 2016 WL 4059614, at *2 (C.D. Cal. July 26, 2016) (“Court’s rarely excuse a defendant’s

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obligation to timely file a notice of removal.”) (citing cases); DeMichele v. Loewen, Inc., No. c-

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12-00628-DRB, 2012 WL 1980828, at *1 (N.D. Cal. June 1, 2012) (granting plaintiff’s motion to

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remand while noting that no “excusable neglect” provision exists in the removal statute and that

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the time limit for removal is mandatory); Dietrich v. Cooperstein, No. C 94-4333 FMS, 1995 WL

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59494, at *2 (N.D. Cal. Feb. 8, 1995) (“Literally dozens of federal courts have held that the time

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provisions of section 1446(b) are mandatory and must be strictly construed.”).

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The removal statute and the case law interpreting it are clear. The thirty-day time limit for

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the filing of a notice of removal is mandatory. The court declines to apply the “excusable

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neglect” standard and the Pioneer factor analysis in assessing defendant’s belated motion for an

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Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule
36-3(b).
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extension of time to file its untimely notice of removal and defendant’s motion will therefore be

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denied.

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Accordingly, the court will also grant plaintiff’s motion to remand. The thirty-day

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removal deadline set forth by 28 U.S.C. § 1446(b) “is mandatory such that a timely objection to a

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late petition will defeat removal.” Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136, 1142

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n.4 (9th Cir. 2013) (internal citation omitted); see also Babasa v. LensCrafters, Inc., 498 F.3d

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972, 974 (9th Cir. 2007) (“If a notice of removal is filed after this thirty-day window, it is

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untimely and remand to state court is therefore appropriate.”). Defendant filed its notice of

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removal forty-seven days after the deadline for doing so had passed, (Doc. No. 1 at 1), and

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plaintiff timely objected (Doc. No. 6-1). Plaintiff’s motion to remand to Tulare County Superior

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Court will therefore be granted.

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Plaintiff has also requests attorneys’ fees and costs associated with opposing defendant’s

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notice of removal. (Doc. No. 6-1 at 3–4); see also 28 U.S.C. § 1447(c) (“An order remanding the

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case may require payment of just costs and any actual expenses, including attorney fees, incurred

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as a result of the removal.”). “Absent unusual circumstances, attorney’s fees should not be

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awarded when the removing party has an objectively reasonable basis for removal.” Martin v.

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Franklin Capital Corp., 546 U.S. 132, 141 (2005). This test “recognize[s] the desire to deter

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removals sought for the purpose of prolonging litigation and imposing costs on the opposing

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party, while not undermining Congress’s basic decision to afford Defendants a right to remove as

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a general matter, when the statutory criteria are satisfied.” Id. at 140. In this case, the court

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declines to award fees and costs. Plaintiff argues that there was no legal justification for

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defendant’s delay in filing the petition for removal. (Doc. No. 6-1 at 4.) While the court has

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determined that defendant’s reliance on the Pioneer factors in support of its untimely removal to

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be misplaced, the court does not find it objectively unreasonable that defendant interpreted

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existing case law as affording relief for its carelessness. See Quentmeyer v. Davis, No. 2:19-cv-

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00609-JAM-CKD (PS), 2019 WL 3027006, at *3 (E.D. Cal. July 11, 2019), appeal dismissed,

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No. 19-16945, 2019 WL 7407427 (9th Cir. Oct. 23, 2019) (“An objectively reasonable basis for

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removal may exist where, for example, defendant relies on existing case law, later overturned,
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supporting removal. Fees may be denied where defendant’s interpretation of the statute

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authorizing removal was not objectively unreasonable.”) (internal citation removed). Cf. Mecchi

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v. Hallquist, No. 2:17-cv-00110-KJM-DB, 2017 WL 2180479, at *3 (E.D. Cal. May 18, 2017)

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(awarding fees and finding it “reasonable to infer from the timing of the removal that defendant’s

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primary purpose was to prolong the litigation and burden plaintiff”). Defendant also notes in its

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opposition to the motion to remand that late removal did not prejudice plaintiff or the litigation of

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this case. (See Doc. Nos. 11 at 2–3; 13 at 3.)

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CONCLUSION
For the reasons set forth above,

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1.

Defendant’s motion for an extension of time (Doc. No. 7) is denied;

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Plaintiff’s motion to remand (Doc. No. 6) is granted;

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3.

Plaintiff’s request for an award of attorneys’ fees and costs is denied;

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This case is remanded to Tulare County Superior Court for all further proceedings;

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and
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The Clerk of the Court is directed to close this case.

IT IS SO ORDERED.
Dated:

September 6, 2020
UNITED STATES DISTRICT JUDGE

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