Alapati v. City and County of San Francisco

Opinion

1 2 3 6 Case No. 21-cv-04144-SI 7 ALIITASI T ALAPATI, 20-cv-08058-SI (related) 8 Plaintiff,

9 v. ORDER DENYING MOTION TO REMAND

10 CITY AND COUNTY OF SAN Re: Dkt. No. 9 FRANCISCO, et al., 11 Defendants. 12 13 Currently before the Court is plaintiff Aliitasi Alapati’s motion to remand. Dkt. No. 9. 14 Pursuant to Civil Local Rule 7-1(b), the Court finds this matter suitable for disposition without oral 15 argument and VACATES the August 20, 2021 motion hearing. Having carefully considered the 16 papers submitted, the Court DENIES plaintiff’s motion to remand. 17 19 On March 11, 2020, Plaintiff filed a complaint in San Francisco Superior Court against 20 Defendants City and County of San Francisco (“the City”), “Nurse Goodai”, and DOES 1 21 THROUGH 50 asserting ten causes of action relating to plaintiff’s treatment as an inmate of the 22 City’s jail. Dkt. No. 1, Ex. A. On October 30, 2020, Plaintiff’s sister handed proofs of service of 23 summons and complaint at the Office of the City Attorney at 1390 Market Street with a city clerk, 24 Andrea Brosnan. Dkt. No. 13, Exs. B, C; 14-1 (Alapati Decl.) at ¶¶ 4, 5. The summons identified 25 the City and “Nurse Goodai” as defendants. Dkt. No. 13, Exs. B; C. 26 On or about March 29, 2021, defense counsel represented to plaintiff’s counsel that defense 27 counsel could not identify “Nurse Goodai” and stated “Nurse Goodai” had not been personally 1 defense counsel information about “nurse Goodai (or Godai)” and requested defense counsel notify 2 plaintiff’s counsel “if [defense counsel was] able to ascertain his identity with this information.” 3 Dkt. No. 13-11, Ex. A. On April 19, 2021, defense counsel notified plaintiff about the identity of 4 nurse Giday Beshue. Id. at ¶ 4. On May 3, 2021, Plaintiff filed a First Amended Complaint (“FAC”) 5 in San Francisco Superior Court naming the City and Nurse Giday Beshue as defendants. Dkt. No. 6 13, Ex. H. On the same day, defense counsel accepted service on Defendant Beshue’s behalf. Dkt. 7 No. 13 at 3; 13-1 (Hannawalt Decl.) at ¶ 9. 8 On June 1, 2021, Defendant Beshue removed the case to this Court. Dkt. No. 1. The City 9 consented to Defendant Beshue’s removal. Dkt. No. 1 at 1. On June 30, 2021, Plaintiff filed a 10 Motion to Remand to State Superior Court. Dkt. No. 9. On July 14, 2021, Defendant Beshue filed 11 an opposition. Dkt. No. 13. On July 21, 2021, Plaintiff filed a reply. Dkt. No. 14. 12 14 A defendant may remove any civil action brought in a state court over which the district 15 court has original jurisdiction. 28 U.S.C. § 1441(a). A defendant must remove within 30 days of 16 receiving plaintiff's initial pleading or, where the case is not removable based on the initial pleading, 17 within thirty days of receiving an amended pleading, motion, order or other paper from which it 18 may first be ascertained that the case has become removable. 28 U.S.C. § 1446(b). “Each defendant 19 shall have 30 days after receipt by or service on that defendant of the initial pleading or summons . 20 . . to file the notice of removal.” 28 U.S.C. § 1446(b)(2)(B). “If defendants are served at different 21 times, and a later-served defendant files a notice of removal, any earlier-served defendant may 22 consent to the removal even though that earlier-served defendant did not previously initiate or 23 consent to removal.” 28 U.S.C. § 1446(b)(2)(C). 24 Generally, a summons must be served on each defendant with a copy of the complaint. FED. 25 R. CIV. P. 4(c)(1). An individual “may be served in a judicial district of the United States by:

26 (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is 27 located or where service is made; or (A) delivering a copy of the summons and of the complaint to the 1 individual personally;

2 (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides 3 there; or

4 (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. 5 FED. R. CIV. P. 4(e). 6

7 DISCUSSION 8 Plaintiff argues Defendant Beshue’s removal was untimely because Defendant Beshue was 9 personally served on October 13, 2020, more than thirty days before removal. Dkt. No. 9 at 5. 10 Defendant Beshue argues removal was proper because Defendant Beshue was served on May 3, 11 2021. Dkt. No. 13 at 3. 12 Plaintiff has failed to demonstrate that service was valid on October 13, 2020. See 13 Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004) (“Once service is challenged, plaintiffs bear 14 the burden of establishing that service was valid.”). Plaintiff failed to provide evidence showing 15 that the city clerk, Andrea Brosnan, was Defendant Beshue’s agent or authorized to accept service 16 on Defendant Beshue’s behalf. See Pochiro v. Prudential Ins. Co., 827 F.2d 1246, 1248-249 (9th 17 Cir. 1987) (explaining service on the defendant's law firm was ineffective absent specific authority 18 from the defendant); International Metaphysical Ministry Inc. v. Schaefer, 18-cv-4524-SBA, 2018 19 WL 10560778 at *3 (N.D. Cal. Nov. 21, 2018) (“To effectuate service through an agent, that agent 20 must have specific authority from his or her principal to accept service . . . agency cannot be 21 established by the putative agent's conduct.”). Indeed, the complaint and summons did not identify 22 Defendant Behue and the March 31, 2021 email from plaintiff’s counsel to defense counsel 23 demonstrates plaintiff did not know the identity of “nurse Goodai (or Godai)” until after defense 24 counsel was able to identify Defendant Giday Beshue. Dkt. No. 13-11, Ex. A. There is no evidence 25 that Defendant Beshue had actual notice of the original complaint and Defendant Beshue did not 26 appear in court until after the FAC was served on May 3, 2021. See Crowley v. Bannister, 734 F.3d 27 967, 975 (9th Cir. 2013) (“Rule 4 is a flexible rule that should be liberally construed so long as a 1 party receives sufficient notice of the complaint.”) (internal citations and quotations omitted) 2 Given that Defendant Beshue was served on May 3, 2021, Defendant Beshue had until June 3 2, 2021 to remove. See Murphy Bros., 526 U.S. 344, 347-48 (1999) (“a named defendant's time 4 || to remove is triggered by simultaneous service of the summons and complaint, or receipt of the 5 complaint, “through service or otherwise,” after and apart from service of the summons, but not by 6 || mere receipt of the complaint unattended by any formal service.”). On June 1, 2021, Defendant 7 || Beshue removed the case with Defendant the City’s consent. See 28 U.S.C. § 1446(b)(2)(C) (“Tf 8 defendants are served at different times, and a later-served defendant files a notice of removal, any 9 earlier-served defendant may consent to the removal even though that earlier-served defendant did 10 || not previously initiate or consent to removal.”). Accordingly, Defendant Beshue’s removal was 11 proper and plaintiff's motion to remand is DENIED.

14 For the foregoing reasons and for good cause shown, the Court DENIES plaintiff's motion 3 15 to remand. a 16 IT IS SO ORDERED. 3 17 Dated: August 17, 2021 Site WU tee 18 SUSAN ILLSTON 19 United States District Judge 20 21 22 23 24 25 26 27 28