Arntsen v. State of Washington

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 RICKY M. ARNTSEN, CASE NO. 3:24-CV-5511-BHS-DWC 11 Plaintiff, v. REPORT AND RECOMMENDATION 12 STATE OF WASHINGTON, et al., Noting Date: September 6, 2024 13 Defendants. 14

15 Presently before the Court is Plaintiff Ricky M. Arntsen’s Motion to Remand. Dkt. 14. 16 The Court concludes this action was properly removed to this Court. Therefore, the Court 17 recommends the Motion to Remand (Dkt. 14) be denied. 18 I. Background 19 In the Complaint, Plaintiff alleges Defendants, multiple state agencies and state 20 employees, are liable for conduct arising from the spread of infectious diseases inside 21 Washington State correctional facilities. Dkt. 3-5. 22 Plaintiff filed this lawsuit in the Pierce County Superior Court – a Washington State court 23 – on April 29, 2024. Dkts. 1, 1-1. On June 26, 2024, Defendants State of Washington, Clallam 24 1 Bay Corrections Center, Stafford Creek Corrections Center, Department of Corrections - SCCC, 2 Steven Sinclair, Cheryl Strange, Jeri Boe, Danielle Armbruster, Paul Clark, J. Scott Edwards, 3 Linda M. Ineman, Rhonda Stump, Shane L. Evans, Jay Jackson, Ron Haynes, Jason Bennett, 4 Annikaa Mizin, Jeff Tatro and Patrick Collecchi (“the State Defendants”) removed this action to

5 this Court under the theory of federal question. Dkt. 1. 6 Plaintiff filed the Motion to Remand on July 26, 2024, alleging the State Defendants 7 improperly removed this action because the removal was not unanimous and his federal claims 8 lack merit. Dkt. 14. Plaintiff seeks remand to the state court. Id. The State Defendants filed a 9 Response to the Motion to Remand with supporting evidence and, on August 14, 2024, Plaintiff 10 filed his Reply. Dkts. 19, 20, 22. 11 II. Discussion 12 Federal courts are courts of limited jurisdiction. Owen Equip. & Erection Co. v. Kroger, 13 437 U.S. 365, 374 (1978). Under the removal statute, a defendant may remove any civil action 14 over which the federal district court has original jurisdiction. 28 U.S.C. §1441(a). A plaintiff can

15 challenge removal with a motion to remand. 28 U.S.C. § 1447(c); Moore-Tomas v. Alaska 16 Airlines, Inc., 553 F.3d 1241, 1243 (9th Cir. 2009). The defendant then bears the burden of 17 establishing that removal is proper. Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). The court 18 will resolve all ambiguities in favor of remand. Hunter v. Philip Morris USA, 582 F.3d 1039, 19 1042 (9th Cir. 2009). 20 Although the federal removal statute carries with it a “strong presumption against 21 removal,” id., a plaintiff may not defeat removal by “artfully pleading” a federal cause of action 22 as a state claim. Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475 (1998). District courts 23

24 1 have federal question jurisdiction over all suits “arising under the Constitution, laws, or treaties 2 of the United States.” 28 U.S.C. § 1331. 3 First, Plaintiff asserts defendants did not unanimously remove this case. Dkt. 14. 4 Specifically, Plaintiff argues “Correctional Industries” did not consent to the removal. Id. When

5 there is more than one defendant in the action, all defendants must unanimously agree to join in 6 the removal. Hewitt v. City of Stanton, 798 F.2d 1230, 1232 (9th Cir.1986). This is commonly 7 referred to as the unanimity requirement. Failure to comply with the unanimity requirement 8 renders the removal procedurally defective. See Emrich v. Touche Ross & Co., 846 F.2d 1190, 9 1192 n.1 (9th Cir.1988). However, only defendants who have been “properly ... served in the 10 action” must join a petition for removal. Destfino v. Reiswig, 630 F.3d 952, 956 (9th Cir. 2011) 11 (quoting Emrich, 846 F.2d at 1192 n.1). 12 Plaintiff argues that “Correctional Industries” is listed as a defendant on the cover of the 13 civil complaint. Dkt. 14. The State Defendants assert “Correctional Industries” is a part of the 14 Department of Corrections (“DOC”). Dkt. 19; see also Dkt. 20-2. The State Defendants contend

15 that the Attorney General’s Office did not accept service on behalf of Correctional Industries 16 because it is not a legal entity and is not separate from the DOC. Dkt. 19; see also Dkt. 20-1 17 (noting no acknowledgment of service of Correctional Industries). It is the State Defendants’ 18 position that, because Correctional Industries is a division of the DOC and because the DOC 19 joined the removal, the removal is proper. Id. 20 The Court finds Correctional Industries had not been properly served. See Dkt. 20-1. At 21 the time of the removal, the properly served Defendants joined in the Notice of Removal. 22 23

24 1 Therefore, Plaintiff’s argument that the removal was not unanimous fails.1 See Pro-Com Prod., 2 Inc. v. Kings Express LA, Inc., 2018 WL 5291928, at *4 (C.D. Cal. Oct. 22, 2018) (finding a 3 named defendant who has not been properly served need not consent to removal and, therefore, 4 removal was proper).

5 Second, Plaintiff provides several arguments to assert that this case should be remanded 6 back to the state court because the Complaint fails to state a cognizable federal claim against the 7 State Defendants. Dkt. 14.2 At this time, the Court need not determine if Plaintiff has stated valid 8 claims under 42 U.S.C. § 1983. “In determining the existence of removal jurisdiction, based 9 upon a federal question, the court must look to the complaint as of the time the removal petition 10 was filed.” Abada v. Charles Schwab & Co., 300 F.3d 1112, 1117 (9th Cir. 2002) (quoting 11 O’Halloran v. Univ. of Wash., 856 F.3d 1375, 1379 (9th Cir. 1988)) (emphasis in original). In his 12 Complaint, Plaintiff alleges his U.S. Constitutional rights were violated. See Dkt. 1-1. As stated 13 above, district courts have federal question jurisdiction over all suits “arising under the 14 Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Therefore, this Court has

15 jurisdiction over Plaintiff’s claims related to the violation of his federal Constitutional rights. 16 Further, a plaintiff may not compel remand by amending a complaint to eliminate the 17 federal question upon which removal was based. Sparta Surgical Corp. v. National Ass’n of 18 Securities Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir. 1998), abrogated on other grounds by 19

20 1 The record does not reflect that Defendants Byd Surgical Masks Manufacturer and Honeywell Surgical Masks Manufacturer have been properly served. Further, counsel has not entered an appearance on behalf of either 21 defendant. Plaintiff does not assert removal lacks unanimity because of these two defendants. See Dkt. 14. 2 Plaintiff makes several different arguments related to an underlying assertion that he has failed to state a 22 federal claim. Dkt. 14. For example, Plaintiff argues Defendants cannot waive sovereign immunity, Plaintiff cannot assert § 1983 claims against the state employees in their official capacity, and the State and its officials cannot be 23 sued under § 1983. See id. Plaintiff is essentially arguing this case should be remanded back to state court because he has failed to state a cognizable federal claim. As such, the Court addresses Plaintiff’s remaining arguments under 24 Plaintiff’s overarching theory that remand is necessary because he has failed to state a federal claim. 1 Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, 136 S.Ct. 1562 (2016). Plaintiff’s 2 assertion that his federal claims are improper does not extinguish federal question jurisdiction, 3 nor will it if he amends his Complaint. See Stub v. Credit Control Servs. Inc., 2021 WL 141530, 4 at *2 (W.D. Wash. Jan. 15, 2021) (finding any subsequent amendment after removal was

5 insufficient to remove the Court’s subject matter jurisdiction or compel immediate remand of the 6 case, but declining supplemental jurisdiction after the federal claims were dismissed). 7 Plaintiff also argues that the State of Washington cannot remove a case because it is 8 immune from suit under Eleventh Amendment immunity. See Dkt. 14. This Court has concluded 9 that, where the State has consented to removal, the pleading of a potentially unsuccessful defense 10 does not require remand. Wickersham v. Washington, No. C13-1778-JCC, 2013 WL 12320785, 11 at *2 (W.D. Wash. Dec. 31, 2013) (finding Eleventh Amendment immunity defense did not 12 make Washington State’s consent to removal improper). 13 As the record reflects that the removal was consented to by all properly served defendants 14 and that this case was properly removed to this Court based on federal question jurisdiction, the

15 Court recommends the Motion to Remand (Dkt. 14) be denied.3 16 III. Conclusion 17 For the above stated reasons, the Court recommends Plaintiff’s Motion to Remand (Dkt. 18 14) be denied. 19 Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have 20 fourteen (14) days from service of this report to file written objections. See also Fed. R. Civ. P. 21 6. Failure to file objections will result in a waiver of those objections for purposes of de novo 22

23 3 The Court notes the Complaint contains state law claims. Dkt. 1-2. The state law claims and the federal claim arise from the same set of events and are closely related. Therefore, at this time, the Court finds retaining 24 supplemental jurisdiction over the state law claims is appropriate. See 28 U.S.C. § 1367. 1 review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of those 2 objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda v. 3 Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time limit 4 imposed by Fed. R. Civ. P. 72(b), the Clerk is directed to set the matter for consideration on

5 September 6, 2024, as noted in the caption. 6 Dated this 22nd day of August, 2024. 7 A 8 David W. Christel United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24