Honchariw v. Cnty. of Stanislaus
| Docket Number | 1:21-cv-00801-DAD-SKO |
| Decision Date | 17 November 2021 |
| Parties | NICHOLAS HONCHARIW, Trustee, Honchariw Family Trust, Plaintiff, v. COUNTY OF STANISLAUS, Defendant. |
| Court | U.S. District Court — Eastern District of California |
ORDER DENYING PLAINTIFF'S MOTION TO REMAND (DOC. NO. 6)
This matter is before the court on plaintiff Nicholas Honchariw's motion to remand this action to the Stanislaus County Superior Court. (Doc. No. 6.) Pursuant to General Order No. 617 addressing the public health emergency posed by the coronavirus pandemic, on June 9, 2021, the court took this matter under submission to be decided on the papers. (Doc. No. 7.) For the reasons set forth below, the court will deny plaintiff's motion to remand.
On August 25, 2017, plaintiff filed a verified petition for writ of mandate and complaint for declaratory relief and damages in the Stanislaus County Superior Court (the “initial complaint”) against defendant County of Stanislaus regarding certain conditions of approval for a subdivision of residential lots in the County of Stanislaus. (Doc. No. 1 at 8-16.) Plaintiff's initial complaint asserted three state law causes of action for writ of mandate under California Code of Civil Procedure § 1085, declaratory relief under California Code of Civil Procedure § 536(a), and damages under California Government Code § 66020. (Id.)
After litigating in state court for over three years, plaintiff advised defendant and the superior court that he intended to file a verified supplemental and amended complaint for damages (the “supplemental complaint”). (Doc Nos. 6-2 at ¶ 7; 8 at 8-16.) Unlike the initial complaint, plaintiff's supplemental complaint stated federal claims on its face.[1] (Doc. Nos. 6-1 at 5; 8 at 8-16.) On March 16, 2021, the parties executed a stipulation agreeing: (1) to file a proposed order with the Stanislaus County Superior Court allowing plaintiff to file the supplemental complaint; (2) that defendant acknowledged service of the supplemental complaint; (3) that defendant denied all allegations in the supplemental complaint and waived no defenses; and (4) that defendant was given sixty days to file its responsive pleading to the supplemental complaint (the “stipulation”). (Doc. No. 8 at 4-5.) A copy of plaintiff's supplemental complaint was also attached to the parties' stipulation. (Id. at 8-16.)
In the following days and weeks, plaintiff unsuccessfully attempted to electronically file the stipulation and supplemental complaint with the Stanislaus County Superior Court. (Doc No. 6-2 at ¶ 9.) Finally, on April 21, 2021, the superior court entered an order upon the parties' stipulation, (Doc. No. 8 at 6), and the supplemental complaint was deemed filed two days later, on April 23, 2021.[2] (Doc. No. 1 at 237-245.)
On May 17, 2021, twenty-four days after plaintiff's supplemental complaint was filed in state court, defendant removed the action to this federal court. (Doc. No. 1.) In its notice of removal, defendant asserts that removal is proper under 28 U.S.C. § 1441(a) and 28 U.S.C. § 1331 because this court has original jurisdiction over plaintiff's claims arising under the United States Constitution and 42 U.S.C. § 1983. (Doc. No. 1 at 3.) Defendant also contends that under 28 U.S.C. § 1367(a) this court may exercise supplemental jurisdiction over plaintiff's remaining state-law claims because they are part of the same case or controversy as the related federal claims. (Id.) Defendant maintains that removal was timely under 28 U.S.C. § 1446(b)(3) because the supplemental complaint was filed on April 23, 2021 and the notice of removal was filed within thirty days thereafter, on May 17, 2021. (Id. at 4.)
On June 8, 2021, twenty-two days after the notice of removal was filed, plaintiff filed the pending motion to remand. (Doc. No. 6.) Therein, plaintiff argues that the removal of this action was untimely because the notice of removal was not filed within thirty days of the execution of the parties' stipulation, which plaintiff contends constitutes an “other paper” from which defendant could first ascertain that the case was removable. (Id. at 2.) Plaintiff also contends that defendant waived its right to removal when it executed the parties' stipulation. (Id.) Plaintiff does not, however, challenge defendant's jurisdictional basis for removing the supplemental complaint-only its timeliness. Plaintiff also seeks recovery of his costs and fees in bringing this motion. (Id.) Defendant filed an opposition to the pending motion on July 6, 2021, arguing that there were no grounds upon which to remove this action until the supplemental complaint filed in state court became operative on April 23, 2021. (Doc. No. 10 at 7.) As for waiver, defendant maintains that its execution of the stipulation did not manifest its intent to adjudicate the case in state court and thus does constitute waiver of its right to removal. (Id. at 7-8) Plaintiff filed his reply on July 12, 2021. (Doc. No. 11.)
A suit filed in state court may be removed to federal court if the federal court would have had original jurisdiction over the suit. 28 U.S.C. § 1441(a). Removal is proper when a case originally filed in state court presents a federal question or where there is diversity of citizenship among the parties and the amount in controversy exceeds $75, 000. 28 U.S.C. §§ 1331, 1332(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction over the removed action, “the case shall be remanded.” 28 U.S.C. § 1447(c). “The removal statute is strictly construed against removal jurisdiction, and the burden of establishing federal jurisdiction falls to the party invoking the statute.” Cal. ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004); see also Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009) (). As such, a federal court must reject jurisdiction and remand the case to state court if there is any doubt as to the right of removal. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003); see also Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1118 (9th Cir. 2004).
As to the timeliness of a removal, 28 U.S.C. § 1446(b) sets forth two separate thirty-day provisions that govern the time to remove a case from state court to federal court. First, a notice of removal must be filed within thirty days of defendant receiving “a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b)(1). Second, if the initial pleading does not indicate that the case is removable, a second thirty-day deadline for removal will begin to run when defendant receives “a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” Id. § 1446(b)(3). The first thirty-day removal deadline set forth in 28 U.S.C. § 1446(b) “is mandatory such that a timely objection to a late petition will defeat removal.” Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136, 1142 n.4 (9th Cir. 2013). “If a notice of removal is filed after [the second] thirty-day window, it is [also] untimely and remand to state court is therefore appropriate.” Babasa v. LensCrafters, Inc., 498 F.3d 972, 974 (9th Cir. 2007).
Here, the parties dispute whether defendant's removal of this action was timely. There is no question that defendant's removal on May 17, 2021 was timely if the thirty-day removal clock began to run when plaintiff's supplemental complaint was filed (April 23, 2021) or when the superior court entered the order pursuant to the parties' stipulation (April 21, 2021). Plaintiff does not dispute this. Instead, plaintiff contends that the removal clock under 28 U.S.C. § 1446(b)(3) was triggered well before either the supplemental complaint was filed, or the state court entered the order on the parties' stipulation.[3] (Doc. No. 6-1 at 3.) Specifically, plaintiff argues that the stipulation executed by the parties on March 16, 2021 constituted an “other paper” alerting defendant to the removability of the initial complaint, thereby triggering the running of the second thirty-day removal clock. (Doc. No. 11 at 2.) In short, removal of this action is timely, unless as plaintiff argues, the second thirty-day removal period began to run on March 16, 2021 when the parties executed their stipulation.
In his motion to remand, plaintiff admits that “the initial complaint did not expressly state federal claims, ” and he does not argue that the initial complaint “was removable ‘on its face.'” (Doc. No. 11 at 2-3.) Plaintiff's main argument is that because the initial complaint was drafted broadly enough to encompass federal claims, defendant could first ascertain that federal claims existed when it received the supplemental complaint attached to the stipulation, thus triggering the commencement of the second thirty-day removal period at that time. (Doc No. 11 at 2.) Plaintiff directs the court to specific paragraphs in the initial complaint where he contends he “alleged the basic facts necessary for the federal claims” and “the elements of the federal claims.” (Doc. No. 6-1 at 6.) Plaintiff maintains that these allegations-even if “they are insufficient to show a federal claim ‘on its face'”-were adequate to provide a basis for proceeding with federal claims under California law. (Doc. No. 11 at 3.) Thus, plaintiff contends that when the broad allegations of the initial complaint were paired with the notice provided by the parties' stipulation, defendant should have ascertained that there...
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