California Republican Party v. Mercier

• Decision Date: 22 December 1986
• Docket Number: No. CV 86-6896 MRP.,CV 86-6896 MRP.
• Citation: 652 F. Supp. 928
• Court: U.S. District Court — Central District of California
• Parties: CALIFORNIA REPUBLICAN PARTY, et al., Plaintiffs, v. Michael MERCIER, et al., Defendants.

652 F. Supp. 928

CALIFORNIA REPUBLICAN PARTY, et al., Plaintiffs, v. Michael MERCIER, et al., Defendants.

No. CV 86-6896 MRP.

United States District Court, C.D. California.

December 22, 1986.

COPYRIGHT MATERIAL OMITTED

John A. Slezak, Iverson, Yoakum, Papiano & Hatch, Los Angeles, Cal., for plaintiffs.

Joseph Remcho, Remcho, Johansen & Purcell, San Francisco, Cal., for defendants.

ORDER DISMISSING COMPLAINT IN PART AND REMANDING COMPLAINT IN PART

PFAELZER, District Judge.

This Court heard oral argument on plaintiffs' motion to remand this case to state court, and defendants' motions to dismiss and to strike plaintiffs' complaint on December 1, 1986. For the reasons discussed below, the Court has concluded that plaintiffs' motion to remand this case without reaching the merits should be denied and that defendants' motion to dismiss counts two and three of plaintiffs' first amended complaint with prejudice should be granted. The federal claims having been dismissed, count one of the first amended complaint must be remanded to the state court.

I. Background

Plaintiffs in this case (collectively referred to as "the Party") are the California Republican Party, its chairman, Clair W. Burgener, and a member of the Party, John A. Slezak. Defendants (collectively referred to as "Mercier") are two individuals, Michael Mercier and Jim Corey, and their unincorporated business association, Republic Media Group, as well as one hundred unnamed Does.

The facts underlying this controversy are relatively simple. Just prior to the June 1986 California primary election, Mercier mailed several million slate mailers to Republican voters all over California. These mailers prominently featured slogans such as "Vote Your Republican Team `86" and "Republican Ticket." The mailer endorsed a slate of local and statewide political candidates and statewide ballot propositions for voters in the Republican primary. The mailer prominently identified which proponents of candidates and propositions had paid for the production of the mailer (most notably proponents of U.S. Senate candidate Ed Zschau, Lieutenant Governor candidate Mike Curb, and opponents of ballot Proposition 51), and which candidates had not paid, but were endorsed anyway (most notably Governor George Deukmejian). On one side of the mailer was the legend "Republic Media Group Republican Ticket-An Unofficial Political Group," which Mercier contends meets the identification requirement of Cal.Elec.Code § 11704 (West 1977), relating to postcard mailers. The mailer did not contain the more detailed legend required by Cal.Elec.Code § 11703 (West 1977) for folded letter mailers, which the Party contends applies to this mailer.

It is the Party's position that Mercier intended to deceive Republican voters into believing that the mailer represented the official endorsements of the Party. Before the June primary election, the Party believed it was legally barred from endorsing candidates in contested Republican primary elections. (In fact, on June 18, 1986, the Ninth Circuit affirmed a district court's order enjoining enforcement of California's ban on primary endorsements, on the ground that the ban violates the First Amendment. The district court's order had been stayed pending appeal. San Francisco County Democratic Central Committee v. Eu, 792 F.2d 802, 820 (9th Cir.1986), petition for cert. filed, 55 U.S.L.W. 3238 (U.S. Oct. 7, 1986) (No. 86-434).) The Party had actually endorsed Proposition 51, while the mailer opposed it.¹

On June 2, 1986, the day before the primary, the Party commenced this suit in Superior Court of the State of California in and for the County of Los Angeles. At that time, the Party sought injunctive relief under state law against Mercier. On September 23, 1986, the Party sought and obtained permission from the state court to amend its complaint. The amended complaint included, for the first time, causes of action against Mercier under the federal civil rights laws. As it now stands, the first amended complaint contains three counts, count one under Cal.Elec.Code § 11703, count two under 42 U.S.C. § 1983 (1981), and count three under 42 U.S.C. § 1985(3) (1981). Mercier petitioned for removal to this Court on October 22, 1986, within thirty days of the filing of the amended complaint.

II. The Party's Motion to Remand

The Party urges this Court to remand this case to state court before reaching the merits of its first amended complaint on three grounds. First, the Party argues that by participating in the state court proceeding between these parties, Mercier waived any right to remove to this Court. Second, the Party argues that since this case involves significant unresolved issues of state law, the case is appropriate for Pullman abstention. Third, the Party argues that since the state and federal courts have concurrent jurisdiction over civil rights actions, its choice to litigate in state court should not be disturbed.²

A. Waiver of Removal

It is well established that a defendant can make such affirmative use of the processes of a state court as to constitute waiver or estoppel of any right to remove to federal court. What acts legally constitute waiver is somewhat less clear. See generally, 1A J. Moore & B. Ringle, Moore's Federal Practice ¶ 0.1579 (2d ed. 1986). Filing a permissive counterclaim or third-party complaint, for instance, does constitute waiver. Sood v. Advanced Computer Techniques Corp., 308 F.Supp. 239, 242 (E.D.Va.1969). In Chicago Title & Trust Co. v. Whitney Stores, Inc., 583 F.Supp. 575 (N.D.Ill.1984), the defendant was held to have waived removal. That case was a state unlawful detainer action, which normally would have gone to trial within two weeks of filing. Defendant sought and received a continuance (without mentioning any intent to remove), and then filed for removal. The court held that in the circumstances, seeking the continuance in state court constituted a waiver of the right to remove. Id. at 577.

In this case, the Party attempts to analogize to Chicago Title. In the state court, the Party was aggressively attempting to obtain depositions from the various defendants. Mercier sought and obtained a stay of discovery on the ground that discovery would be unnecessary if, as Mercier was urging, the Party had no legal right to recover damages.³ The stay was granted, and then Mercier filed for removal. Chicago Title does not support the Party's contention. As a general rule, only clear and unequivocal waivers will defeat a party's right to remove to federal court. Carpenter v. Illinois Central Gulf R. Co., 524 F.Supp. 249, 251 (M.D.La.1981). Federal courts strictly apply waiver when removal occurs close to the time of trial in the state action. See Chicago Title, 583 F.Supp. at 577; Heniford v. American Motors Sales Corp., 471 F.Supp. 328 (D.S.C. 1979), appeal dismissed, 622 F.2d 584 (4th Cir.1980). This case does not involve similar concerns. This case, unlike Chicago Title, was not close to trial in state court. The stay in this case only concerned discovery. Moreover, Party has not demonstrated any bad faith on the part of Mercier. Mercier has a statutory right to remove, the removal petition was timely, and the Party has not demonstrated that anything occurred in state court which should bar removal.

B. Pullman Abstention

Under Railroad Comm'n. of Texas v. Pullman, 312 U.S. 496, 501, 61 S.Ct. 643, 645, 85 L.Ed. 971 (1941), and its progeny, federal courts should sometimes abstain from proceeding even where jurisdiction is proper. There are arguably two abstention doctrines relevant to this case.⁴ One is the doctrine that federal constitutional questions should not be reached where an interpretation of an ambiguous state law might dispose of the controversy. Second is the doctrine that federal courts should, even where the federal constitution is not implicated, avoid resolving open questions of state law. Even if this Court were to be required to reach questions concerning the state law at issue here, Cal. Elec.Code § 11703, neither doctrine would apply to this case.⁵ The law at issue is quite clear. Moreover, the state courts have definitively interpreted § 11703 in light of constitutional challenge, in California Democratic Council v. Arnebergh, 233 Cal.App.2d 425, 43 Cal.Rptr. 531, appeal dismissed, 382 U.S. 202, 86 S.Ct. 395, 15 L.Ed.2d 269 (1965); see Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S.Ct. 507, 511, 27 L.Ed.2d 515 (1971) (no abstention if state statute clearly construed). To the extent that uncertain state law issues arise, the Court could certify them to the state courts for decision. The Supreme Court has endorsed the use of certification as a substitute for abstention, where a potentially dispositive question of state law is uncertain. Lehman Bros. v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741, 1744, 40 L.Ed.2d 215 (1974).⁶

C. Remand Because of Concurrent Jurisdiction

The Party argues that since the federal civil rights statutes have been interpreted to create concurrent jurisdiction in both the federal and state courts, its choice of forum should not be disturbed.⁷ The argument is as follows: since Congress created concurrent jurisdiction, not exclusive jurisdiction, it must have meant for plaintiffs to be able to choose either forum. This position has found some scattered support. Young v. Board of Education of Fremont School District, 416 F.Supp. 1139, 1141 (D.Colo.1976); Salveson v. Western States Bankcard Ass'n., 525 F.Supp. 566, 573 (N.D.Cal.1981) (dicta), rev'd in part, 731 F.2d 1423 (9th Cir.1984). However, the overwhelming majority of cases have held that federal civil rights claims are removable. Langford v. Gates, 610 F.Supp. 120, 122 (C.D.Cal.1985); see also, Cook v. Robinson, 612 F.Supp. 187, 188-89 (E.D.Va. 1985); Baldi v. City of Philadelphia, 609 F.Supp. 162, 168 (E.D.Pa.1985); Routh v. City of Parkville, 580 F.Supp. 876, 877 (W.D.Mo.1984); Sweeney v. Abramovitz, 449...