Lewis v. City of Fresno

• Decision Date: 15 December 2008
• Docket Number: No. 1:08-cv-01062 OWW GSA.,1:08-cv-01062 OWW GSA.
• Court: U.S. District Court — Eastern District of California
• Parties: James LEWIS, Plaintiff, v. CITY OF FRESNO, Jerry Dyer, Robert Nevarez, John Romo, Greg Garner, Anthony Martinez and Does 1 through 10, Inclusive, Defendants.

627 F.Supp.2d 1179

James LEWIS, Plaintiff, v. CITY OF FRESNO, Jerry Dyer, Robert Nevarez, John Romo, Greg Garner, Anthony Martinez and Does 1 through 10, Inclusive, Defendants.

No. 1:08-cv-01062 OWW GSA.

United States District Court, E.D. California.

December 15, 2008.

Rayma Church, Emerson, Corey, Sorensen, Church and Yohman, Fresno, CA, for Plaintiff.

Gregory L. Myers, Fresno City Attorney's Office, Fresno, CA, for Defendants.

MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S MOTION TO REMAND (DOC. 12)

OLIVER W. WANGER, District Judge.

I. INTRODUCTION.

Plaintiff James Lewis ("Lewis") brings this action alleging employment discrimination and retaliation by his employer, the City of Fresno, and various employees of the Fresno Police Department ("FPD") based on his race, sex, marital status, and union activity. Plaintiff is an African-American male who has been employed with the FPD since 1986 and is currently a sergeant. He alleges both state and federal causes of action: 1) discrimination and retaliation pursuant to California Government Code § 12900 et seq.; 2) retaliation pursuant to California Government Code § 3502.1; 3) discrimination, harassment, and retaliation pursuant to 42 U.S.C. § 1981; 4) discrimination pursuant to 42 U.S.C. § 1983; and 5) conspiracy pursuant to 42 U.S.C. § 1985. Plaintiff seeks compensatory and punitive damages, as well as attorney's fees.

Plaintiff filed his complaint in the Superior Court of California, County of Fresno, on June 9, 2008. (Doc. 1.) On July 21, 2008, Defendants Dyer, Nevarez, Romo, Garner and Martinez jointly filed a removal notice which stated, "Please take notice that Defendants Jerry Dyer, Robert Nevarez, John Romo, Greg Garner and Anthony Martinez ("Individual Police Defendants") hereby remove to this Court the state court action described below." (Doc. 1 at 1.) Before the court for decision is Plaintiff's motion to remand, based on the following procedural grounds: 1) that the removal notice is untimely because Defendant City of Fresno did not file it within the thirty-day time period required under 28 U.S.C. § 1446(b); and 2) that the removal notice is fatally defective because Defendant City of Fresno did not express its consent to removal, preventing the unanimity of consenting defendants required by 28 U.S.C. § 1446.

Defendants oppose, arguing: 1) removal was timely under the last-served defendant rule; 2) there is a split in authority regarding the "first-served" versus "last-served" defendant rule and the Eastern District of California has applied the latter rule consistent with the modern trend; 3) joinder and consent of the City is effectively presumed where all Defendants are represented by the same counsel, the City paid for and filed the removal notice, and the City and individual defendants brought a motion to dismiss; and 4) the court has discretion to grant Defendants leave to amend or supplement their removal notice.

II. BACKGROUND.

On June 9, 2008, Plaintiff filed his complaint in the Superior Court of California, County of Fresno. (Doc. 1.) On June 12, 2008, Defendant City of Fresno was served. (Doc. 18 at 4.) On July 2, 2008, Defendants Dyer, Nevarez, Romo, Garner and Martinez were served via substituted service on the FPD liaison officer. (Doc. 12-2 at 1.) On July 21, 2008, Defendants Dyer, Nevarez, Romo, Garner and Martinez jointly filed a removal notice.¹ (Doc. 1.) On July 31, 2008, all Defendants jointly filed a motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6), or in the alternative, a 12(e) motion for a more definite statement and/or a 12(f) motion to strike. (Doc. 7.)

Plaintiff filed this motion to remand on August 12, 2008. (Doc. 12.) Defendants filed their opposition on October 9, 2008. (Doc. 18.)

III. LEGAL STANDARD.

A district court may remand to state court a case that has been removed to the district court if at any time it appears that the district court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). A motion to remand on the basis of any defect in the removal procedure must be made within 30 days of the filing of the notice of removal. Id. Where a motion for remand is not made within 30 days of removal of the case to the district court, the court must remand the case to state court sua sponte when federal subject matter jurisdiction is lacking. A federal court must determine its own jurisdiction even if the parties fail to raise the issue. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990).

Federal courts construe removal statutes strictly to limit removal jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992). Removal is generally proper when the district courts have original jurisdiction over the action. See 28 U.S.C. § 1441; Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir.1996). Jurisdiction must be determined from the face of the complaint, Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987), and it must be clear from the face of the complaint under the well-pleaded complaint rule that federal subject matter jurisdiction exists. Oklahoma Tax Comm'n. v. Graham, 489 U.S. 838, 840-41, 109 S.Ct. 1519, 103 L.Ed.2d 924 (1989) (per curiam).

Procedures for removal are prescribed by 28 U.S.C. § 1446. If a defendant or defendants desire to remove a civil action from state court to federal court, they must file "a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action." 28 U.S.C. § 1446(a).

Subdivision (b) of § 1446 specifies the "notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of 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) (emphasis added). When there is more than one defendant in the action, all defendants must unanimously agree to join in or consent to the removal. Hewitt v. City of Stanton, 798 F.2d 1230, 1232 (9th Cir. 1986); United Computer Sys., Inc. v. AT & T Corp., 298 F.3d 756, 762 (9th Cir. 2002). This is commonly referred to as the unanimity requirement.

Failure to comply with the thirty-day time limitation or the unanimity requirement renders the removal procedurally defective. See Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n. 1 (9th Cir.1988). Procedural defects in removal, however, are not jurisdictional. Rather, such defects are modal or formal and may be waived. Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir.1980); Hernandez v. Six Flags Magic Mountain, Inc., 688 F.Supp. 560, 562 (C.D.Cal.1988).

IV. DISCUSSION.

A. Timeliness of Defendants' Removal Notice.

The parties in this case stipulated to extend the time "in which to file a response to the complaint" to July 31, 2008. (Doc. 12-2, Declaration of Rayma Church, Exhibit 8.) As an initial matter, it is important to note that the statutory time limit for removal petitions is mandatory. Fristoe, 615 F.2d at 1212. The time limits cannot be extended by continuance or stipulation. See Littlefield v. Cont'l Cas. Co., 475 F.Supp. 887, 890 (C.D.Cal. 1979); Transport Indem. Co. v. Fin. Trust Co., 339 F.Supp. 405, 407 (C.D.Cal.1972); 14C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3732 (3d ed. & Supp. 2008) ("the decided cases make it clear that these statutory periods will not be extended by the district court continuances, demurrers, motions to set aside service of process, pleas in abatement, stipulations, or various other court orders").

Plaintiff argues Defendant City of Fresno failed to remove within the thirty-day time period required under 28 U.S.C. § 1446(b), as the City was served on June 12 while the removal notice was filed on July 21.² Plaintiff asserts that the thirty-day period for removal commenced on June 12, requiring the City to file a removal notice by Monday, July 14 (because July 12 was a Saturday).³ Plaintiff urges the adoption of the "first-served" defendant rule, citing a number of district court decisions, including McAnally Enterprises, Inc. v. McAnally, 107 F.Supp.2d 1223, 1226 (C.D.Cal.2000), and Biggs Corp. v. Wilen, 97 F.Supp.2d 1040, 1044-46 (D.Nev. 2000). Plaintiff does not challenge the court's federal question subject matter jurisdiction over this case.

Applicable caselaw reveals a split in authority on the question of whether, in a case involving multiple defendants served at different times, the period to remove ends thirty days after service of the first defendant or thirty days after the last defendant is served. Neither the Supreme Court or the Ninth Circuit has addressed this issue. United Computer Sys., 298 F.3d at 762. Plaintiff argues that the "first-served" defendant rule is the majority rule. But the caselaw indicates a recent trend in favor of the "last-served" rule since the Supreme Court's decision in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999), which is discussed in detail below. See Myer v. Nitetrain Coach Co., Inc., 459 F.Supp.2d 1074, 1079 (W.D.Wash.2006); Bonner v. Fuji Photo Film, 461 F.Supp.2d 1112, 1117 (N.D.Cal.2006); Coleman v. Assurant, Inc., 463 F.Supp.2d 1164, 1168 (D.Nev. 2006) ("the current movement in this Circuit, and the nation, [is] to follow the later-served defendant rule"); Piacente v. State Univ. of N.Y. at Buffalo, 362 F.Supp.2d 383, 389-90 (W.D.N.Y.2004) (listing cases relying on Murphy Bros. and stating "it is important to note that the majority of post-Murphy Bros. authorities have adopted the [last-served] rule"); Smith v. Mail Boxes, Etc. USA, Inc., 191...