Ewing v. Layton et al
Filing
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ORDER denying Plaintiff's 4 Motion to Remand to State Court. Signed by Judge Cynthia Bashant on 3/11/2015. (All non-registered users served via U.S. Mail Service) (jah)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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Plaintiffs,
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Case No. 14-cv-02951-BAS(MDD)
ANTON EWING,
v.
ORDER DENYING PLAINTIFF’S
MOTION FOR REMAND
(ECF No. 4)
FARRELL K. LAYTON, ET AL.,
Defendants.
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Plaintiff Anton Ewing (“Plaintiff”) commenced this action in San Diego
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Superior Court on November 6, 2014 against Defendants Farrell K. Layton, Tracy
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Dishno, Stacee Botsford, Kaitlin Koehne, Shelley J. Zimmerman, San Diego Police
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Department, City of San Diego, County of San Diego, William D. Gore, and San
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Diego County Sheriff’s Department alleging Defendants violated his constitutional
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and statutory rights under both state and federal law. (ECF No. 1-2.) Defendant
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Tracy Dishno removed this matter to this Court on December 15, 2014 pursuant to
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28 U.S.C. §§ 1331, 1441(a) and (c). (ECF No. 1.) Plaintiff now moves to remand
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this action to State court. (ECF No. 4.)
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The Court finds this motion suitable for determination on the papers submitted
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and without oral argument. See Civ. L.R. 7.1(d)(1). For the following reasons, the
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Court DENIES Plaintiff’s motion to remand (ECF No. 4).
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I.
BACKGROUND
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Plaintiff commenced this action on November 6, 2014 in San Diego Superior
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Court. (ECF No. 1-2 (“Compl.”).) Plaintiff alleges that “[o]n August 25, 2014, the
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San Diego Police Department and San Diego County Sheriff’s Department, by and
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through its agents and officers, maliciously, intentionally and knowingly engaged in
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a false arrest, false imprisonment and battery of Plaintiff by handcuffing him against
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his will and forcing him into an extremely hot, locked San Diego Police Department
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police car for over 6 hours without food, water, bathroom break or a telephone call.”
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(Id. at p. 2.) He further alleges the “San Diego Police Department and its agents
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engaged in threats and extortion attempts to get Plaintiff to talk,” and “the conditions
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inside the Sheriff’s Department holding cells was extreme, outrageous and unfit for
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human habitation.” (Id.) Plaintiff was released approximately 30 hours after he paid
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bail. (Id.)
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Plaintiff filed this civil rights action under 42 U.S.C. §1983 alleging (1)
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Defendants City of San Diego, San Diego Police Department, Layton, Dishno,
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Botsford, Koehne, and Zimmerman violated his Fourth Amendment right “to be free
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from arrest without probable cause” (id. at pp. 22-26); (2) Defendants County of San
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Diego and William D. Gore violated the Fourth Amendment when he “was
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subjected to an extended period of pretrial detention without a prompt judicial
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determination of probable cause to believe that he committed a crime” (id. at p. 26);
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(3) municipal liability against County of San Diego and William D. Gore for having
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de facto unconstitutional policies, including the “routine failure[] to take pretrial
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detainees to be arraigned within 48 hours of their detention” (id. at pp. 27-28); (4)
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Defendants City of San Diego, San Diego Police Department, and Zimmerman
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violated his Fourth Amendment right when they brought “media representatives or
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other third parties into [his] home during the execution of [his] arrest” (id. at pp. 28-
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29); (5) Defendants City of San Diego, San Diego Police Department and
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Zimmerman failed to maintain adequate and proper training for police officers (id. at
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pp. 29-31); and (6) Defendants City of San Diego, San Diego Police Department and
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Zimmerman, as a matter of custom, practice, and policy, failed to supervise and
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discipline police officers “to prevent, deter and punish wrongful arrests and
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detentions” (id. at pp. 29-31).
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Plaintiff also brings state law causes of action for false imprisonment (id. at
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pp. 32-34), intentional infliction of emotional distress (id. at pp. 34-35), negligent
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infliction of emotional distress (id. at pp. 35-36); negligence (id. at pp. 36-37); and
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violation of California Civil Code § 52.1 (id. at pp. 37-43) relating to the events
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surrounding his August 25, 2014 arrest. Plaintiff also alleges, in the alternative, that
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California Penal Code section 128 is unconstitutional. (Id. at p. 39.)
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II.
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LEGAL STANDARD
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life
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Ins. Co. of Am., 511 U.S. 375, 377 (1994).
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authorized by Constitution and statute, which is not to be expanded by judicial
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decree.” Id. (internal citations omitted). “It is to be presumed that a cause lies
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outside this limited jurisdiction, and the burden of establishing the contrary rests
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upon the party asserting jurisdiction.” Id. (internal citations omitted); see also
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Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006).
“They possess only that power
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Consistent with the limited jurisdiction of federal courts, the removal statute is
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strictly construed against removal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564,
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566 (9th Cir. 1992); see also Sygenta Crop Prot. v. Henson, 537 U.S. 28, 32 (2002);
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O’Halloran v. Univ. of Wash., 856 F.2d 1375, 1380 (9th Cir. 1988). “The ‘strong
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presumption’ against removal jurisdiction means that the defendant always has the
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burden of establishing that removal is proper.” Gaus, 980 F.2d at 566 (citations
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omitted); see also Nishimoto v. Federman-Bachrach & Assoc., 903 F.2d 709, 712
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n.3 (9th Cir. 1990); O’Halloran, 856 F.2d at 1380.
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Any civil action “of which the district courts of the United States have
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original jurisdiction” may be removed to district court. 28 U.S.C. § 1441(a). Under
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28 U.S.C. § 1446(b), a defendant must file a notice of removal within 30 days after
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being served with a complaint alleging a basis for removal. 28 U.S.C. § 1446(b);
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Quality Loan Serv. Corp. v. 24702 Pallas Way, Mission Viejo, CA 92691, 635 F.3d
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1128, 1132 (9th Cir. 2011). Each defendant has 30 days after service of the initial
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pleading to file a notice of removal. 28 U.S.C. § 1446(b)(2)(B); Destfino v. Reiswig,
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630 F.3d 952, 956 (9th Cir. 2011). “If defendants are served at different times, and a
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later-served defendant files a notice of removal, any earlier-served defendant may
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consent to the removal even though that earlier-served defendant did not previously
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initiate or consent to removal.” 28 U.S.C. § 1446(b)(2)(C).
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When there are multiple defendants, all defendants named in the complaint
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who have been properly served in the action must also join in or consent to the
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removal. 28 U.S.C. § 1446(b)(2)(A); Hewitt v. City of Stanton, 798 F.2d 1230, 1232
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(9th Cir. 1986). “One defendant’s timely removal notice containing an averment of
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the other defendants’ consent and signed by an attorney of record is sufficient.”
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Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1225 (9th Cir. 2009).
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A motion to remand must be made within 30 days after the filing of the Notice
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of Removal. 28 U.S.C. § 1447(c). Remand may be ordered either for lack of
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subject matter jurisdiction or for any defect in removal procedure. Id.
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III.
DISCUSSION
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Plaintiff does not dispute that the Court has original jurisdiction over his
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Section 1983 civil rights claims and may exercise supplemental jurisdiction over his
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related state law claims. See 28 U.S.C. §§ 1343(a)(3) & 1367(a); Acri v. Varian
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Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). Rather, Plaintiff seeks to remand
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this action because of claimed procedural deficiencies in Defendant Dishno’s Notice
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of Removal.
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Plaintiff seeks to remand this matter on the following grounds: (1) the Notice
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of Removal was untimely as more than thirty days passed between the date the
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served Defendants knew about the lawsuit and the date of removal; (2) Plaintiff
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claims three of the Defendants – City of San Diego, William D. Gore, and San
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Diego County Sheriff’s Department – had not been served with the state court
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summons at the time of removal, thus Defendant Dishno had not obtained the
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consent of all defendants in order to properly effect removal; (3) additional
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defendants will be named in the future and they have not consented to removal; and
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(4) Defendant Dishno failed to attach “a copy of all process, pleadings, and orders
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served upon such defendant or defendants” in the State court action pursuant to 28
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U.S.C. § 1446(a). (ECF No. 4 at p. 3.)
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A.
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Defendant Dishno, an officer with the San Diego Police Department, was
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formally served with a copy of the Summons and Complaint on December 4, 2014
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by personal service on Sergeant Jose Chavez. (ECF No. 4 (“Mot”) at p. 4; ECF No.
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14 (“Opp.”) at Ex. 2; ECF No. 1-2 at 49 (“Proof of Personal Service”).) Her Notice
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of Removal was filed on December 15, 2014. (ECF No. 1.)
Timeliness of Defendant Dishno’s Notice of Removal
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Plaintiff claims Defendant Dishno received a copy of the Complaint earlier
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than December 4, 2014, when he emailed a draft copy of the Complaint to the City’s
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Community Relations Officer on September 4, 2014 and when he sent a copy of the
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filed Complaint to “the person in charge of the case for the City of San Diego” on
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November 6, 2014, thus triggering the removal period earlier.
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However, “actual notice of the action is insufficient; rather, the defendant must be
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‘notified of the action, and brought under a court’s authority, by formal process,’
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before the removal period begins to run.” Quality Loan Serv. Corp., 635 F.3d at
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1132 (quoting Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347
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(1999)). Defendant Dishno filed her Notice of Removal within 30 days of being
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(Mot at p. 4.)
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formally served. Accordingly, Defendant Dishno’s Notice of Removal was timely.
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B.
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A notice of removal shall include “a copy of all process, pleadings, and orders
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served upon such defendant or defendants” in the State court action. 28 U.S.C. §
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1446. Plaintiff contends that Defendant Dishno failed to attach discovery pleadings.
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(Mot. at pp. 6-7.) However, discovery does not constitute process, pleadings, or
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orders. Visicorp v. Software Arts, Inc., 575 F.Supp. 1528, 1531 (N.D. Cal. 1983),
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abrogated on other grounds by Stewart Org. v. Ricoh Corp., 487 U.S. 22 (1988).
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Therefore, Defendant Dishno was not required to include the documents with her
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Attaching Copies of Process and Pleading
Notice of Removal.
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C.
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Only those defendants who have been properly served must join in or consent
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to the removal of the action. 28 U.S.C. § 1446(b)(2)(A); Destfino, 630 F.3d at 956-
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57. As of the date of removal, Defendants City of San Diego, County of San Diego,
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William D. Gore, and the San Diego County Sheriff’s Department had not yet been
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served. (See ECF No. 1-2 at 49 (“Proof of Personal Service”); Mot at p. 3; Opp. at
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p. 4.) Accordingly, those Defendants, and any defendants yet to be named, were not
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required to consent or join in the removal.
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IV.
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Joinder or Consent of All Defendants
CONCLUSION & ORDER
For the foregoing reasons, the Court DENIES Plaintiff’s motion to remand
(ECF No. 4).
IT IS SO ORDERED.
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DATED: March 11, 2015
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