Jane Doe v. County of Santa Clara et al

Filing 34

ORDER denying 21 Kidango's Motion to Remand. The court advances the Case Management Conference scheduled for 12/3/2015, to 9:00 a.m. on 12/1/2015. The parties shall file an updated Joint Case Management Conference Statement on or before 11/24/2015. Signed by Judge Edward J. Davila on 11/20/2015. (ejdlc4S, COURT STAFF) (Filed on 11/20/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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JANE DOE, by and through her courtappointed Guardian ad Litem, Lynne Snyder,
Esq.,

Case No. 5:15-cv-01725-EJD
ORDER DENYING MOTION TO
REMAND

Plaintiff,
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Re: Dkt. No. 21

v.

United States District Court
Northern District of California

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COUNTY OF SANTA CLARA, et al.,
Defendants.

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Plaintiff Jane Doe (“Plaintiff”), a minor, filed the instant civil rights action against the

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County of Santa Clara (“County”), various County employees, Kidango, Inc. (“Kidango”), and

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certain private individuals. Presently before the court is Kidango’s Motion to Remand. See Mot.,

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Dkt. No. 21. The County opposes the motion. See Opp’n, Dkt. No. 25. Defendant Deanne

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Paredes filed a statement of non-opposition. See Dkt. No. 32. Plaintiff has filed no statement

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supporting or opposing the motion.

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Federal jurisdiction arises pursuant to 28 U.S.C. §§ 1331 and 1441(a). Oral argument on

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this matter was held on November 19, 2015. Having carefully considered the pleadings in

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conjunction with oral argument, the court finds, concludes, and orders as follows:

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1.

On March 18, 2015, Plaintiff filed this action in Santa Clara County Superior Court

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through her guardian ad litem Lynne Snyder, Esq. See Dkt. No. 1. Plaintiff asserts seven

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claims—two arise under 42 U.S.C. § 1983 and the remaining five arise under California state law.

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On April 16, 2015, the County removed the action to this court claiming federal question

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jurisdiction due to the § 1983 claims. See id. At the time of removal, Kidango had not been

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Case No.: 5:15-cv-01725-EJD
ORDER DENYING MOTION TO REMAND

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served with the summons and complaint. See Mot. at 3. On July 6, 2015, Plaintiff served

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Kidango with the complaint. See id. On July 30, 2015, Kidango filed the instant Motion to

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Remand on the grounds that it did not consent to removal. See Mot.

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2.

A defendant may remove any civil action brought in a state court of which the

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federal district court has original jurisdiction. 28 U.S.C. § 1441(a). The notice of removal must

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be filed within 30 days after the defendant receives the complaint. 28 U.S.C. § 1446(b)(1).

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“When a civil action is removed solely under § 1441(a), all defendants who have properly joined

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and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A). This

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is known as the “rule of unanimity.” If there is a defect in the removal process other than lack of
subject matter jurisdiction, a motion to remand the case “must be made within 30 days after the

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United States District Court
Northern District of California

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filing of the notice of removal.” 28 U.S.C. § 1447(c).

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3.

Three issues are before the court. First, the County contends Kidango’s motion is

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untimely because it was filed more than 30 days after removal. Opp’n at 7. Kidango, however,

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argues that its motion is timely because it was filed within 30 days after it was served with the

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summons and complaint. Mot. at 4; Reply, Dkt. No. 26 at 2. To support its argument, Kidango

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relies on 28 U.S.C. § 1448, which provides in pertinent part: “This section shall not deprive any

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defendant upon whom process is served after removal of his right to move to remand the case.”

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4.

The Ninth Circuit has declined to address the issue of whether § 1448 authorizes a

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defendant who was served after removal to remand the case within 30 days for lack of unanimity.

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See Atl. Nat’l Trust LLC v. Mt. Hawley Ins. Co., 621 F.3d 931, 940 (9th Cir. 2010). One court in

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this district has addressed the issue, and found that § 1448 permits a later served defendant to file a

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motion to remand, exercising its right to choose the state forum. See Prickett v. Bonnier Corp.,

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No. 15-cv-01230-MEJ, 2015 WL 1812798, at *2 (N.D. Cal. Apr. 20, 2015). In evaluating out-of-

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district cases, the Fifth Circuit addressed a similar issue and also found that a later served

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defendant could rely on § 1448 to file a motion to remand. See Getty Oil Corp. v. Ins. Co. of N.

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Am., 841 F.2d 1254, 1263 (5th Cir. 1988) (“Indeed, if a removal petition is filed by a served

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defendant and another defendant is served after the case is thus removed, the latter defendant may

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Case No.: 5:15-cv-01725-EJD
ORDER DENYING MOTION TO REMAND

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still either accept the removal or exercise its right to choose the state forum by making a motion to

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remand.”). Given the scant caselaw on the issue, the court finds these authorities persuasive.

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Furthermore, in considering this case’s procedural history, the court finds

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Kidango’s timeliness argument meritorious. At the time the County removed the case, Kidango

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had not been served; indeed, Kidango was served 81 days after removal. Since Kidango was not

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properly joined as a party until 81 days after the notice of removal was filed, it would have lacked

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standing to file a motion to remand within the 30-day period following the removal. Plaintiff’s

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delay in providing service should not deprive Kidango of exercising its right to file a motion to

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remand. As such, the court concludes that Kidango’s motion is timely because it was filed within

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United States District Court
Northern District of California

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30 days after it became a properly noticed party in this case.
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The second issue before the court concerns the merits of the motion. The basis for

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Kidango’s motion is that it did not, and does not, consent to the removal. Mot. at 2. To the extent

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Kidango argues there is a defect in the removal process because the rule of unanimity was not

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satisfied, it is misguided. Pursuant to the removal statute, when removal is based on federal

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question, only the defendants against whom a federal claim is asserted are required to join in or

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consent to the removal. 28 U.S.C. § 1441(c)(2). Moreover, the Ninth Circuit has found that

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“defendants properly joined and served in the action” must consent to the removal. Emrich v.

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Touche Ross & Co., 846 F.2d 1190, 1193 n.1 (9th Cir. 1988). Thus, “a party not served need not

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be joined in a petition for removal.” Id. In this instance, Kidango’s consent for removal was

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unnecessary because there are no federal claims asserted against it, and it was not yet served with

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process at the time of removal. As such, the defect in the removal process claimed by Kidango

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does not exist. In the absence of any other grounds for remanding the case, the court will deny

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Kidango’s motion.

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The third issue before the court concerns the County and Kidango’s apparent

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agreement to sever and remand the one state law claim asserted solely against Kidango. See

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Opp’n at 10; Reply at 5. The basis for this proposed remedy is 28 U.S.C. § 1441(c)(2), which

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provides in part that upon removal of a federal question case, the district court shall sever from the

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Case No.: 5:15-cv-01725-EJD
ORDER DENYING MOTION TO REMAND

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action all state law claims not within the original or supplemental jurisdiction of the federal district

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court, and remand the severed claims to the state court. At oral argument, the court addressed this

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proposed remedy with the parties. The County and Kidango continue to agree that such a result is

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appropriate. Plaintiff, however, argues that it would be burdensome to litigate in both the federal

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and state forums.

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After careful consideration, the court declines to adopt the proposed remedy of

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severing and remanding the one state law claim asserted solely against Kidango for several

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reasons. First, the court agrees it would impose an undue burden and hardship for Plaintiff to

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litigate in both forums. Second, given the severe factual allegations and involvement of a minor, it
is best to minimize Plaintiff’s personal appearance and involvement in litigation. Third, it would

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United States District Court
Northern District of California

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be judicially efficient for all claims to remain together to avoid inconsistent findings and rulings.

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Lastly, pursuant to 28 U.S.C. § 1367(a), this court has supplemental jurisdiction over the state law

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claims because they involve a common nucleus of operative facts—Plaintiff’s alleged abuse while

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in foster care, and defendants’ failure to investigate and report the abuse. See Tr. of the Constr.

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Indus. & Laborers Health & Welfare Trust v. Desert Valley Landscape & Maint., Inc., 333 F.3d

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923, 925 (9th Cir. 2003) (“Nonfederal claims are part of the same ‘case’ as federal claims when

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they derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily

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be expected to try them in one judicial proceeding.”).

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Accordingly, Kidango’s Motion to Remand is DENIED. As indicated at the hearing, the

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court advances the Case Management Conference scheduled for December 3, 2015, to 9:00 a.m.

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on December 1, 2015. The parties shall file an updated Joint Case Management Conference

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Statement on or before November 24, 2015.

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IT IS SO ORDERED.
Dated: November 20, 2015
______________________________________
EDWARD J. DAVILA
United States District Judge

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Case No.: 5:15-cv-01725-EJD
ORDER DENYING MOTION TO REMAND