Olympia Funding, Inc. v. Beverly Hills Estates Funding, Inc. et al

Filing 6

ORDER TO SHOW CAUSE; Defendant Fresquez to file memorandum within 20 days; Plaintiff to file responsive pleading within 10 days thereafter; Signed by Judge Marilyn Hall Patel on 3/14/2007. (awb, COURT-STAFF) (Filed on 3/15/2007)

Olympia Funding, Inc. v. Beverly Hills Estates Funding, Inc. et al

Doc. 6

Case 3:07-cv-01402-MHP

Document 6

Filed 03/15/2007

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1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This action was removed pursuant to a "Notice of Removal" filed on March 9, 2007, by defendant Richard Fresquez. There are seven defendants named in the action, yet the removing defendant has not joined any of them nor indicated whether any of them have been served and, if so, what their respective statuses are with regard to joining in the removal. In interpreting 28 U.S.C. section 1441, courts have long held that all defendants must join in the removal. Chicago, R.I. & P.F. Co. v. Martin, 178 U.S. 245 (1900); Hewitt v. City of Stanton, 798 F.2d 1230, 1232 (9th Cir. 1986). Furthermore, removal statutes are strictly construed and doubts should be resolved in favor of remand. The burden is on the removing defendant to establish removal jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); California ex rel. Lockyer v. Dynergy, Inc., 375 F.3d 831, 838 (9th Cir. 2004), cert. denied, 544 U.S. 974 (2005). Removal jurisprudence is riddled with traps waiting to ensnare the unwary, particularly where there are multiple defendants. Questions such as the time within which to remove, when later vs. BEVERLY HILLS ESTATES FUNDING, INC et al., Defendant(s). / OLYMPIA FUNDING, INC., Plaintiff(s), UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA No. C07-1402 MHP ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE REMANDED

Dockets.Justia.com

Case 3:07-cv-01402-MHP

Document 6

Filed 03/15/2007

Page 2 of 2

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

served defendants must remove or join the removal, which defendants must remove, abound; and these are only a sampling. In this case, another question is raised: where a complaint alleges a removable federal question claim and nonremovable claims can a defendant named only in the nonremovable claims file for removal? And, must that defendant join in a removal application made by defendants on the removable claims, if they seek to remove? There are serious questions as to the effectiveness of the removal effort here and defendant Fresquez must answer them. Therefore, within twenty (20) days of the date of this order defendant Fresquez must submit a memorandum not to exceed ten (10) pages and a declaration, the former addressing the issue of whether a defendant on a nonremovable claim or claims may remove and the latter setting forth the status of the remaining defendants including whether they have been served and, if so, when they were served. Plaintiff shall file its response not to exceed ten (10) pages within ten (10) days of the filing of defendant's submission. At that time the matter will be deemed submitted. This order is styled as on order to cause why this action should not be remanded. If defendant Fresquez, who has the burden of establishing removal jurisdiction fails to carry his burden, this action will be remanded to state court.

IT IS SO ORDERED.

Date: March 14, 2007

MARILYN HALL PATEL District Judge United States District Court Northern District of California