McGuire v. U.S. Department of Justice et al

Filing 36

ORDER ORDER DENYING 12 PLAINTIFFS MOTION TO REMAND (Docket No. 12) AND ADDRESSING DEFENDANTS 7 , 17 , 29 MOTIONS TO DISMISS. Signed by Judge Claudia Wilken on 6/23/2011. (ndr, COURT STAFF) (Filed on 6/23/2011)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOHN PATRICK MCGUIRE,
Plaintiff,

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v.
U.S. DEPARTMENT OF JUSTICE, ET AL.,
Defendant.

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United States District Court
For the Northern District of California

No. C 11-02344 CW

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ORDER DENYING
PLAINTIFF’S
MOTION TO REMAND
(Docket No. 12)
AND ADDRESSING
DEFENDANTS’
MOTIONS TO
DISMISS
(Docket Nos. 7,
17 & 29)

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The United States, specially appearing for Defendant federal

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agencies, officials and individuals, Defendant Merck Sharp & Dohme

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Corp., formerly known as Merck & Co., Inc., and Defendants the City

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of Santa Rosa and the Santa Rosa Police Department have moved to

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dismiss Plaintiff John Patrick McGuire’s Complaint.

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17 & 29.

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County Superior Court.

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remand is DENIED.

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schedule for Defendants’ motions to dismiss and vacates the August

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11, 2011 hearing date and case management conference.

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I. Motion to Remand

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Docket Nos. 7,

Plaintiff has also moved to remand this action to Sonoma
Docket No. 12.

Plaintiff’s motion to

In addition, the Court sets forth a briefing

A defendant may remove a civil action filed in state court to

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federal district court so long as the district court could have

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exercised original jurisdiction over the matter.

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§ 1441(a).

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28 U.S.C.

Title 28 U.S.C. § 1447 provides that if at any time

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before judgment it appears that the district court lacks subject

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matter jurisdiction over a case previously removed from state

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court, the case must be remanded.

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motion to remand, the scope of the removal statute must be strictly

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construed.

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1992).

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means that the defendant always has the burden of establishing that

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removal is proper."

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should resolve doubts as to removability in favor of remanding the

28 U.S.C. § 1447(c).

On a

See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.

"The 'strong presumption' against removal jurisdiction

Id. (internal citation omitted).

Courts

United States District Court
For the Northern District of California

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case to state court.

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jurisdiction is determined by examining the face of the plaintiff’s

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properly pleaded complaint.

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386, 392 (1987).

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See id.

Ordinarily, federal question

Caterpillar Inc. v. Williams, 482 U.S.

In this case, in which Plaintiff has sued federal Defendants

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for their official actions, the United States appropriately sought

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removal of the action to federal district court pursuant to 28

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U.S.C. § 1442(a).

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civil action commenced in state court against the United States,

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any agency thereof, or any officer or person acting under an

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officer of the United States or of any agency thereof, when such a

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defendant is sued in an official or individual capacity for any act

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under color of law.

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to consent to removal, and any alleged contract that he might have

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with the Superior Court of Sonoma County, do not divest this Court

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of its jurisdiction to consider the matter.

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Medellin v. Texas, 552 U.S. 491 (2008), is unpersuasive because the

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case does not address this court’s jurisdiction under section

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Section 1442(a) authorizes the removal of a

Id.

Plaintiff’s disability, his unwillingness

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Plaintiff’s cite to

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1442(a), and does not otherwise establish that removal of this

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action is improper.

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II. Motions to Dismiss

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Thus, Plaintiff’s motion to remand is DENIED.

Plaintiff shall oppose Defendants’ motions to dismiss in a

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single consolidated brief, not to exceed twenty-five pages, filed

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within fourteen days from the date this Order issues.

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limit for Plaintiff’s opposition is set at twenty-five pages

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because Defendants’ motions to dismiss do not exceed this length.

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Provided that Plaintiff meets the deadline to oppose, Defendants

The page

United States District Court
For the Northern District of California

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may each submit a reply brief, none to exceed five pages, within a

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week after Plaintiff has filed his opposition.

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to oppose the motions by the deadline, Plaintiff will face

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dismissal of his Complaint for failure to prosecute.

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If Plaintiff fails

The motions to dismiss will be decided on the papers.

The

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August 11, 2011 date for hearing and a case management conference

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is VACATED.

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date if necessary.

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A case management conference will be reset for a later

IT IS SO ORDERED.

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Dated: 6/23/2011
CLAUDIA WILKEN
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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MCGUIRE et al,

Case Number: CV11-02344 CW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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U.S. DEPARTMENT OF JUSTICE et al,
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Defendant.
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United States District Court
For the Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court,
Northern District of California.
That on June 23, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies)
in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in
the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's
office.

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John Patrick McGuire
1407 Townview Avenue Apt.213
Santa Rosa, CA 95405

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Dated: June 23, 2011

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Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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