Powell v. Darling

Filing 8

ORDER signed by District Judge Kimberly J. Mueller on 6/21/2017 ORDERING that defendant SHOW CAUSE within 14 days why this case should not be remanded to state court for untimely removal under 28 U.S.C. § 1446(b). (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL T. POWELL,

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No. 2:17-cv-1035-KJM-CKD

Plaintiff/Petitioner,
v.

ORDER

TOMERY A. POWELL,

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Defendant/Respondent.

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On May 16, 2017, defendant Tomery Powell filed a notice of removal in this case.

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ECF No. 1. Defendant asserts “federal question” jurisdiction under 28 U.S.C. § 1331 and

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“diversity” jurisdiction under 28 U.S.C. § 1332, and that removal is appropriate under 28 U.S.C.

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§ 1441. Defendant was served with the complaint in the state case on January 13, 2017. ECF No.

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1 at ¶ 2.

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Removal appears untimely under 28 U.S.C. § 1446(b). Section 1446(b) provides

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for a thirty-day removal period, which runs from the date defendant received the complaint

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“through service or otherwise” and is triggered “if the case stated by the initial pleading is

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removable on its face.” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 885 (9th Cir. 2010)

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(quoting Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005)).

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Here, defendant received the state complaint on January 13, 2017, but waited over
120 days to remove the case. “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.” Babasa v. LensCrafters, Inc., 498

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F.3d 972, 974 (9th Cir. 2007) (citing 28 U.S.C. § 1446(b)). Accordingly, defendant is ordered to

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SHOW CAUSE within fourteen (14) days of this order why this case should not be remanded to

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state court for untimely removal under 28 U.S.C. § 1446(b).

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IT IS SO ORDERED.
DATED: June 21, 2017.

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UNITED STATES DISTRICT JUDGE

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