Douglas v. City & County of San Francisco et al

Filing 11

ORDER REMANDING ACTION. Signed by Judge Maxine M. Chesney on March 30, 2009. (mmclc2, COURT STAFF) (Filed on 3/30/2009)

1 2 3 4 5 6 7 8 9 10 For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants. / CRAIG JOHANN DOUGLAS, Plaintiff, No. C-09-0183 MMC ORDER REMANDING ACTION United States District Court IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

On February 20, 2009, the Court ordered defendant City and County of San Francisco ("City") to show cause why the above-titled action should not be remanded to state court, for the reason that the City had failed to show, in its Notice of Removal, that plaintiff intended his use of the term "constitutional" in his Sixth Claim for Relief to be a reference to the federal Constitution, as opposed to the state Constitution. (See Order filed Feb. 20, 2009 ("OSC") at 1-2.) The Court advised the City that if it was unable to meet its burden of showing plaintiff had brought his Sixth Claim for Relief under the federal Constitution, or, alternatively, if plaintiff stated his intention was to bring said claim solely under the California Constitution, the Court would remand the action. (See id. at 2.) On March 6, 2009, the City filed a response to the Court's OSC. In such response, counsel for the City represents he spoke with plaintiff and that plaintiff "was unable to confirm whether the constitutional violations claimed are federal or state constitutional

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violations." (See Response at 1:22-23.) Counsel for the City further represents that plaintiff advised him plaintiff "was retaining an attorney" and that such attorney would "clarify the nature of plaintiff's constitutional violation claims." (See id. at 1:23-25.) Thereafter, counsel for the City represents, he was contacted by an attorney "in connection with this case," but, by the time of the filing of the City's response to the Court's OSC, said attorney had not clarified the basis for plaintiff's Sixth Claim for Relief, confirmed that she would be representing plaintiff, or appeared in the instant action. (See id. at 1:25-2:6.) In the period since the filing of the City's response, no attorney has appeared on behalf of plaintiff, and plaintiff has not stated whether he intended to bring his Sixth Claim for Relief under the federal Constitution or the state Constitution.1 Accordingly, the City has failed to carry its burden of demonstrating removal was proper, see Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992), and, consequently, the above-titled action is hereby REMANDED to the Superior Court of the State of California in and for the County of San Francisco.2 IT IS SO ORDERED.

Dated: March 30, 2009

MAXINE M. CHESNEY United States District Judge

The Court, in its OSC, advised plaintiff that if he wished to file a reply to the City's response to the OSC, he must do so no later than March 20, 2009. (See OSC at 2:2-3.) No such reply was filed. The Court expresses no opinion herein as to whether the instant action may be reremoved should evidence obtained at a later time demonstrate a valid basis for removal. 2
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