Mitchell v. Acumed, LLC

Filing 32

ORDER REQUIRING SUPPLEMENTAL BRIEFING (sclc1, COURT STAFF) (Filed on 5/26/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RANDALL RAY MITCHELL,

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Plaintiff,

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v.

For the Northern District of California

United States District Court

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ACUMED, LLC; and DOES 1 through
100, inclusive,

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Defendants.

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) Case No. 11-752 SC
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) ORDER REQUIRING
) SUPPLEMENTAL BRIEFING
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Plaintiff Randall Ray Mitchell ("Plaintiff") commenced this

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action in Marin County State Court against Acumed, LLC

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("Defendant") for injuries Plaintiff allegedly sustained after a

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device manufactured by Defendant was surgically inserted into his

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body.

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briefed motions are now before the Court, including Plaintiff's

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Motion to Remand.

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Reply").

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ECF No. 1 ("Notice of Removal") Ex. E ("FAC").

Three fully

ECF Nos. 19 ("MTR"), 25 ("MTR Opp'n"), 28 ("MTR

Under 28 U.S.C. § 1446(b), notice of removal must be filed

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within thirty days after the defendant receives the first pleading

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from which it can be ascertained that the case is removable,

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"except that a case may not be removed on the basis of jurisdiction

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conferred by section 1332 of this title more than 1 year after

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commencement of the action."

28 U.S.C. § 1446(b).

Defendant

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removed this action to federal court on February 18, 2011, citing

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the diversity of the parties as the sole basis of this Court's

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subject matter jurisdiction.

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was filed on January 4, 2010, more than one year earlier.

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Notice of Removal Ex. A ("Initial Complaint").

In California, an

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action is "commenced" on the date it is filed.

Cal. Civ. Proc.

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Code § 350; Coman v. Int'l Playtex, Inc., 713 F. Supp. 1324, 1328

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(N.D. Cal. 1989) (dismissing defendant's argument that

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"commencement" should be interpreted to be the date when action is

United States District Court

For the Northern District of California

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See Notice of Removal.

This action
See

filed and served).
Given the above, it appears that removal of this action was

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improper.

However, because neither party discussed the one-year

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limitation of 28 U.S.C. § 1446(b) in its brief, both parties are

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granted leave to file a supplemental brief of no more than five

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pages in length -- on this issue.

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seven (7) days of this Order; Plaintiff's brief is due within

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fourteen (14) days of this Order.

Defendant's brief is due within

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IT IS SO ORDERED.

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Dated: May 26, 2011
UNITED STATES DISTRICT JUDGE

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