Lara v. County of Santa Clara et al

Filing 30

ORDER RE: BRIEFING. Signed by Judge Richard Seeborg on 4/22/11. (cl, COURT STAFF) (Filed on 4/22/2011)

**E-filed 4/22/11**

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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For the Northern District of California

United States District Court

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THERESA D. LARA,
Plaintiff,
v.

No. C 11-0607 RS
ORDER RE BRIEFING

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COUNTY OF SANTA CLARA, et al.,

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Defendants.
____________________________________/

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This is the third time that this case has been before this Court on removal from Santa Clara

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Superior Court by defendants Santa Clara County, Sheriff Laurie Smith, and Deputy Sheriff Craig

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(collectively “the County”). The first time it was assigned Case No. 10-0751 RS (“Lara I”). In

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April of 2010, Lara I was remanded to state court on grounds that defendants Edmundo and Jean

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Damasco, had not joined in, and in fact objected to, the notice of removal.

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After that first remand, plaintiff sought leave from the state court to file an amended

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complaint that did not include the Damascos as defendants. When leave to amend was granted, but

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before the amended complaint was actually filed, the County again removed the matter to this Court,

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where it was assigned Case No. 10-4359 RS (“Lara II”). Plaintiff moved to remand again.

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Although plaintiff’s motion arguably presented a contention that a second removal would be

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improper regardless of the status of the amended complaint, the motion specifically pointed out that

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it not been filed, and a declaration was offered in support of the motion solely to establish that fact.

In remanding Lara II, the Court relied on the fact that the amended complaint had not been

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filed to conclude that no basis for the second removal existed. The order observed that to the extent

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plaintiff was arguing that successive removals are always improper, the authority she cited did not

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conclusively establish such a rule. Nevertheless, the Court directed that should the Damascos

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ultimately be dismissed, the County was not to effect a third removal without clear precedential

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authority that, “after an initial remand on grounds that not all defendants joined in the removal,

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remaining defendants can properly file a subsequent notice of removal upon dismissal of the

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objecting defendants.” The order also provided that the County should not attempt a third removal

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absent authority that it would be proper to do so after a defective removal based on a incorrect
supposition that objecting defendants had been dismissed.
In February of 2011, the County learned that plaintiff’s counsel had in fact executed a

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For the Northern District of California

United States District Court

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request for dismissal of the Damascos on July 8, 2010, and that their dismissal was entered by the

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Santa Clara Superior Court on July 12, 2010, after the remand of Lara I, and well before the

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removal of Lara II. The request for dismissal had not been served on the County. The County filed

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the third notice of removal within 30 days of first learning of the Damascos’ dismissal.

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These circumstances suggest, at a minimum, a lack of candor by plaintiff’s counsel when he

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sought remand of Lara II, and potentially even an intent to mislead. The assertion that the amended

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complaint had never been filed may have been truthful, but it was irrelevant given that the

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Damascos had already been dismissed. The plain implication of plaintiffs’ motion to remand, and

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the basis on which remand was actually granted, was that the Damascos remained parties to the

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action.

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Accordingly, at this juncture, this action will be treated as if it were only the second time the

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case has been removed to this court. The County need not comply with the provision in the order

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remanding Lara II that required them to show that a subsequent removal is permissible after a

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premature removal based on an incorrect assumption that objecting defendants had been dismissed.

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Because procedural defects in removal are waiveable, plaintiff may elect not to refile the motion to

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remand that she submitted in this action prior to its reassignment to the undersigned. If plaintiff

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chooses to pursue remand, however, she shall limit her argument to presenting authority and

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analysis in support of the proposition that where a case has been remanded based on the fact that not

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all defendants consented to removal, the subsequent dismissal of those defendants does not give rise

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to a right to remove.

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At the time plaintiff files any such motion to remand, or within 20 days of the date of this

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order if she elects not to pursue remand, plaintiff’s counsel shall submit a declaration addressing the

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choice he apparently made when seeking remand of Lara II to argue that the amended complaint

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had not been filed without disclosing that the Damascos had nevertheless already been dismissed

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from the action.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: 4/22/11
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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