Koussaya v. City of Stockton et al

Filing 6

STIPULATION and ORDER signed by District Judge Troy L. Nunley on 9/28/2016 ORDERING case REMANDED to San Joaquin County Superior Court. Copy of remand order sent to other court. CASE CLOSED. (Zignago, K.)

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BRUCE A. KILDAY, ESQ., SB No. 066415
CARRIE A. McFADDEN, ESQ., SB No. 245199
JOHN A. WHITESIDES, ESQ., SB No. 125611
ANGELO, KILDAY & KILDUFF, LLP
Attorneys at Law
601 University Avenue, Suite 150
Sacramento, CA 95825
Telephone: [phone]
Telecopier: [phone]

Attorneys for Defendants CITY OF STOCKTON [also sued as “STOCKTON POLICE
DEPARTMENT”] and all 32 individual officers

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEPHANIE KOUSSAYA,
Plaintiff,

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vs.
CITY OF STOCKTON; et al.,

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Defendants.

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) Case No.: 2:16-cv-01972-TLN-EFB
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) STIPULATION AND ORDER OF
) VOLUNTARY REMAND
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1.

Defendants (including CITY OF STOCKTON and all named individual officers)

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and Plaintiff, STEPHANIE KOUSAYA, hereby agree and stipulate that the Motion to Remand

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be withdrawn, and the case be remanded back to the Superior Court of San Joaquin County.

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2.

The parties, through their respective counsel, agree that there is a legal basis for

remand as follows:

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On March 29, 2016, Plaintiff Stephanie Koussaya and Defendant City of Stockton

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entered into a Stipulation in a bankruptcy proceeding then pending in the United States

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Bankruptcy Court, Eastern District of California, Sacramento Division, entitled In re: City of

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Stockton, Case No. 12-32118. That Stipulation was approved by the Bankruptcy Court. In the
-1STIPULATION AND ORDER OF VOLUNTARY REMAND

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Stipulation the parties agreed that Koussaya would file the present action in the San Joaquin

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County Superior Court, “to litigate all causes of action against the City, among other parties”

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arising from the injuries suffered by Koussaya as a result of the hostage situation at issue in this

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action. In the Bankruptcy Court Stipulation the parties further agreed that “the legal and factual

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merits of the Claims shall be determined by the Superior Court, and that the Superior Court has

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jurisdiction to determine the validity and amount of the Claims.”

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An action can only be removed from state court to federal court if all the defendants

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who have been served join in and consent to the removal. 29 U.S.C. §1446(b)(2)(A); Chicago,

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R.I. & P. Ry. Co. v. Martin, 178 U.S. 245, 247-248 (1900); Destfino v. Reiswig, 630 F.3d 952,

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956 (9th Cir. 2011). A defendant who is party to a forum selection agreement specifying that the

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action will be heard in a state court has waived the right to remove. Pelleport Investors, Inc. v.

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Budco Quality Theatres, Inc., 741 F.2d 273, 281 (9th Cir. 1984); Robeson v. Twin Rivers Unified

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School Dist., 2014 WL 1392922, p. 1 (E.D.Cal. 2014). That party has also waived the right to

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join in or consent to another party’s removal, thereby barring removal of the action by any

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defendant. Medtronic, Inc. v. Endologix, Inc., 530 F.Supp.2d 1054, 1058 (D.Minn.

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2008); Cattlemen’s Choice Loomix, LLC v. Heim, 2011 WL 1884720, p. 3 (D.Colo. 2011).

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The parties agree that Defendant City of Stockton is bound by the Bankruptcy Court

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Stipulation to litigate this action in the San Joaquin County Superior Court, and thereby waived

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the right to consent to removal of the action to this Court. The parties further agree that, because

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Defendant City of Stockton could not consent to removal, the Defendant police officers are

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barred from removing the action to this Court, and the action must therefore be remanded to the

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San Joaquin County Superior Court.

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3.

It is further agreed that the City of Stockton and individual defendants will file a

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response to the Complaint within 10 days of the notice of the remand order being filed with the

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superior court.

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-2STIPULATION AND ORDER OF VOLUNTARY REMAND

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4.

Each party is to bear its own fees and costs.

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Dated: September 27, 2016

PIERING LAW FIRM
/s/ Robert A. Piering (as authorized on 9/27/16)
By:_________________________________
ROBERT A. PIERING
Attorneys for Plaintiff STEPHANIE
KOUSSAYA

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Date: September 27, 2016

ANGELO, KILDAY & KILDUFF, LLP

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/s/ Bruce A. Kilday
By:_________________________________
BRUCE A. KILDAY
CARRIE A. McFADDEN
JOHN A. WHITESIDES
Attorneys for Defendants
CITY OF STOCKTON [also sued as
“STOCKTON POLICE
DEPARTMENT”] and all 32 individual
officers

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ORDER

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IT IS SO ORDERED.

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Dated: September 28, 2016

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Troy L. Nunley
United States District Judge

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-3STIPULATION AND ORDER OF VOLUNTARY REMAND