McGuinn v. City of Sacramento

Filing 17

ORDER signed by Judge John A. Mendez on 7/18/13 ORDERING for the reasons stated above, Plaintiff's Motion to Remand and for Attorneys' Fees is DENIED. (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM McGUINN,

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v.

Defendants.

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ORDER DENYING PLAINTIFF’S MOTION
TO REMAND AND FOR ATTORNEYS’
FEES

CITY OF SACRAMENTO POLICE
DEPARTMENT; and DOES 1
through 25, inclusive,

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2:13-cv-00740-JAM-EFB

Plaintiff,

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No.

Pending before the Court is Plaintiff William McGuinn’s
(“Plaintiff”) Motion to Remand and for Attorneys’ Fees and Costs
(Doc. #10).1

Defendant City of Sacramento (“Defendant”) opposes

the motion (Doc. #13).

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I.

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BACKGROUND

This lawsuit was originally filed in Sacramento County
Superior Court.

Plaintiff sued the City of Sacramento alleging

violations of his civil rights under 42 U.S.C. § 1983.

Defendant

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The motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
originally scheduled for July 10, 2013.
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then removed the action pursuant to 28 U.S.C. § 1441(b) claiming

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federal jurisdiction under 28 U.S.C. § 1331.

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to remand arguing that removal was not timely as required by 28

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U.S.C. § 1446(b).

Plaintiff now moves

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The parties do not dispute that on February 15, 2013

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Plaintiff delivered a copy of the summons and complaint to an

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employee of the Sacramento County District Attorney’s Office and

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mailed those same documents to the Sacramento Police Department’s

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Court Liaison Unit.

Thurbon Decl. (Doc. #10-3), Ex.1.

On March

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8, 2013, the City Attorney’s Office wrote to Plaintiff’s counsel

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claiming that service was improper.

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Plaintiff’s counsel responded in writing on March 14, 2013

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stating that the District Attorney’s Office had informed him that

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their office was the proper agent for service.

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Ex. 4.

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pursuant to the City Attorney’s instructions, his process server

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attempted to serve a copy of the summons and complaint to the

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City Clerk, who would not accept service and directed the process

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server to the Police Department.

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15, 2013 the City Attorney replied to Plaintiff’s request to

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waive any alleged defects in service, stating that although

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service was improper they would waive their objection.

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Decl. (Doc. #10-3), Ex. 2.

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12, 2013.

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Thurborn Decl. Ex. 2.

Thurborn Decl.

Plaintiff’s counsel stated that on March 14, 2013,

Thurborn Decl. ¶ 5.

On March

Chapman

Defendant removed the action on April

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II.

OPINION

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A.

Legal Standard

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“Only state court actions that originally could have been

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filed in federal court may be removed to federal court by the

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defendant.”

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(1987) (citing 28 U.S.C. § 1441).

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construe[s] the removal statute against removal jurisdiction.”

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

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Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988); Takeda v.

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392
The Ninth Circuit “strictly

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Northwestern National Life Insurance Co., 765 F.2d 815, 818 (9th

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Cir. 1985)).

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there is any doubt as to the right of removal in the first

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instance.”

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

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against removal jurisdiction means that the defendant always has

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the burden of establishing that removal is proper.”

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Nishimoto v. Federman-Bachrach & Associates, 903 F.2d 709, 712 n.

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3 (9th Cir. 1990); Emrich v. Touche Ross & Co., 846 F.2d 1190,

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1195 (9th Cir. 1988)).

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Thus, “[f]ederal jurisdiction must be rejected if

Id. (citing Libhart v. Santa Monica Dairy Co., 592
“The ‘strong presumption’

Id. (citing

Parties seeking to remove an action to federal court must

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file notice “within 30 days after the receipt by the defendant,

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through service or otherwise, of a copy of the initial pleading

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setting forth the claim for relief upon which such action or

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proceeding is based.”

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defendant’s time to remove is triggered by simultaneous service

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of the summons and complaint, or receipt of the complaint,

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‘through service or otherwise,’ after and apart from service of

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the summons, but not by mere receipt of the complaint unattended

28 U.S.C. § 1446(b).

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“[A] named

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by any formal service.”

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Stringing, Inc., 526 U.S. 344, 348 (1999) (quoting 28 U.S.C.

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§ 1446(b)).

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not begin to run, regardless of whether defendant had actual

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notice of the action.

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Way, Mission Viejo, CA 92691, 635 F.3d 1128, 1133 (9th Cir.

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2011).

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rather, the defendant must be notified of the action, and brought

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under a court’s authority, by formal process, before the removal

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When service is improper the period to remove does

B.

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Id.

Discussion
1.

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Quality Loan Service Corp. v. 24702 Pallas

Thus, “actual notice of the action is insufficient;

period begins to run.”

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Murphy Bros., Inc. v. Michetti Pipe

Motion to Remand

The parties do not dispute that the Court has subject matter

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jurisdiction over this action pursuant to 28 U.S.C. § 1331 by

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virtue of Plaintiff’s federal claim.

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whether removal was timely under 28 U.S.C. § 1446(b).

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occurred on April 12, 2013, the issue before the Court is whether

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service occurred within the 30 day period beginning on March 13,

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2013.

The parties only dispute
As removal

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Plaintiff argues that he properly served Defendant on

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February 15, 2013 because the County District Attorney’s Office

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was a designated agent of Defendant and was authorized to accept

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service on Defendant’s behalf.

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if the initial service attempt was invalid, valid service

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occurred when the District Attorney’s Office forwarded the

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complaint and summons to the City Attorney as evidenced by

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Defendant’s March 8, 2013 letter to Plaintiff.

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Plaintiff argues service was proper because Defendant waived any

Plaintiff also argues that even

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Finally,

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defects.

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proper, and that the 30 day period to remove did not begin to run

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until Defendant waived its right to formal service on March 15,

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2013.

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Plaintiff was statutorily required to serve the City Clerk and

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Plaintiff failed to do so.

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Defendant responds by asserting that service was not

Defendant argues that service was improper because

As suit was filed in state court, state law governs when

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effective service occurred.

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U.S. 740, 752 (1980).

Walker v. Armco Steel Corp., 446

In California, a court obtains

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jurisdiction over a party “from the time the summons is served

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upon him . . . .”

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be served on a public entity by delivering a copy of the summons

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and of the complaint to the clerk, secretary, president,

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presiding officer, or other head of its governing body.”

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Civ. Proc. Code § 416.50(a).

The City is a public entity.

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Civ. Proc. Code § 416.50(b).

A summons may be served by personal

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delivery of a copy of the summons and of the complaint to the

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party to be served and is deemed complete at the time of such

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delivery.

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served by any person over the age of eighteen that is not a party

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to the action.

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also be served by leaving a copy of the summons and complaint at

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the party’s office that is to be served, and by thereafter

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mailing a copy of the summons and complaint to that party by

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first class mail.

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this manner is deemed complete on the tenth day after mailing.

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Cal. Civ. Proc. Code § 415.20.

Cal. Civ. Proc. Code § 410.50.

Cal. Civ. Proc. Code § 415.10.

Cal.

A summons may

Cal. Civ. Proc. Code § 415.20.

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Cal.

A summons may be

Cal. Civ. Proc. Code § 414.10.

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“A summons may

Service in

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Plaintiff’s argument that valid service of process took

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place on February 15, 2013 is not persuasive.

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Attorney’s Office is plainly not authorized to receive service on

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Defendant’s behalf.

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County District Attorney’s Office was not authorized to receive

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service on behalf of Defendant, the 30 day period to remove did

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not begin on February 15, 2013.

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Defendant by mailing the summons and complaint to the Sacramento

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Police Department is invalid for the same reason; the Police

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Department is not authorized to accept service on Defendant’s

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behalf.

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The District

Cal. Civ. Proc. Code § 416.50(a).

As the

Plaintiff’s attempt to serve

Cal. Civ. Proc. Code § 416.50(a).

Plaintiff’s second argument, that service was complete when

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the City Attorney received the summons and complaint at some time

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prior to March 8, 2013, is similarly unpersuasive because the

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City Attorney is not a city-authorized agent for service of

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process.

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Office is a separate office from the City Clerk’s Office and the

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fact that the City Attorney’s Office eventually possessed the

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summons does not establish that Defendant had been properly

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served.

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Defendant had notice of the action.

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1133.

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Cal. Civ. Proc. Code § 416.50(a).

The City Attorney’s

It is irrelevant in the absence of formal service that
Quality Loan, 635 F.3d at

The Court is also not persuaded that removal was untimely

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because Defendant eventually waived its right to formal service.

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Defendant’s waiver does not make Plaintiff’s earlier invalid

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attempts at service suddenly valid.

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service did not bring Defendant under the formal authority of the

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state court as is required to begin the 30 day period for
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Those faulty attempts at

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removal.

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finds that Defendant was formally served on March 15, 2013 when

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it explicitly waived its right to formal service.

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Murphy Bros., 526 U.S. at 347.

The Court therefore

Defendant was brought under the formal authority of the

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state court on March 15, 2013 and removal on April 12, 2013 was

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therefore timely.

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denied.

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Accordingly, Plaintiff’s motion to remand is

Plaintiff’s Attorneys’ Fees

Defendant’s notice of removal was timely and otherwise

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proper.

Thus, Plaintiff is not entitled to attorneys’ fees under

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28 U.S.C. § 1447(c).

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III. ORDER
For the reasons stated above, Plaintiff’s Motion to Remand
and for Attorneys’ Fees is DENIED.
IT IS SO ORDERED.
Dated: July 18, 2013

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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