1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GUY PATRICK JOHNSON and No. 2:26-cv-00865-JAM VICTORIA LYNN JOHNSON, 12 individually and as Successors-in-Interest of GUY 13 ADAM JOHNSON, ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND 14 Plaintiffs, 15 v. 16 COUNTY OF STANISLAUS, et al., 17 Defendants. 18 19 This matter is before the Court on Plaintiffs Guy Patrick 20 and Victoria Lynn Johnson’s motion to remand the case to 21 Stanislaus County Superior Court. ECF No. 8 (“Mot.”). Defendant 22 County of Stanislaus filed an opposition (ECF No. 18 (“Opp’n”)), 23 and Plaintiffs filed a reply (ECF No. 21 (“Reply”)).1 For the 24 reasons detailed below, Plaintiffs’ motion is granted. 25 Last month, Defendant removed this case to federal court 26 pursuant to 28 U.S.C. §§ 1331, 1441(a), and 1446 because 27 1 This motion was determined to be suitable for decision without 28 oral argument. E.D. Cal. L.R. 230(g). 1 Plaintiffs’ complaint contains a claim for relief under a federal 2 statute, 42 U.S.C. § 1983. ECF No. 1. The complaint was 3 originally filed in Stanislaus County Superior Court on February 4 23, 2026. Id. Defendant was served on March 3, 2026, and at the 5 time Defendant filed its notice of removal here, there were no 6 proofs of service filed on the state court docket for any other 7 named defendants. See Mot. at 3; Opp’n at 2; Reply at 2. 8 However, counsel for the parties had been in contact before 9 Defendant filed the March 12 notice of removal, and on March 16, 10 proofs of service were filed for named defendants Wellpath 11 Management, Inc. and Tenet Healthcare Corporation (“Tenet 12 Healthcare”). See Opp’n at 2. Only one defendant has not been 13 served, Doctors Behavior Health Center, and neither Tenet 14 Healthcare nor Doctors Behavior Health Center have appeared in 15 this matter. See Docket. Defendant Wellpath Management, Inc., 16 however, appeared and filed a notice of consent to the removal of 17 this action here. ECF No. 14. 18 Plaintiffs timely move to remand this matter because 19 Defendant failed to obtain consent from defendant Tenet 20 Healthcare, as required by 28 U.S.C. § 1446, and otherwise failed 21 to exercise reasonable diligence. See Mot. and Reply; 28 U.S.C. 22 § 1446(b)(2)(A) (“When a civil action is removed solely under 23 section 1441(a), all defendants who have been properly joined and 24 served must join in or consent to the removal of the action.”). 25 Defendant argues Plaintiffs’ motion should be denied because the 26 matter was removed before proofs of service were filed, and it is 27 not required to seek consent from Tenet Healthcare because this 28 defendant is fraudulently joined. See Opp’n. 1 It is well-established that “[r]emoval statutes are 2 strictly construed, and any doubt about the right of removal 3 requires resolution in favor of remand. This rule of narrow 4 construction both recognizes the limited jurisdiction of federal 5 courts and protect[s] the jurisdiction of state courts.” Casola 6 v. Dexcom, Inc., 98 F.4th 947, 954 (9th Cir. 2024) (citing and 7 quoting Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 8 1244 (9th Cir. 2009) and Harris v. Bankers Life & Cas. Co., 425 9 F.3d 689, 698 (9th Cir. 2005)) (internal citations and 10 quotations omitted). “The presumption against removal means 11 that the defendant always has the burden of establishing that 12 removal is proper.” Casola, 98 F.3d at 954 (quoting Moore- 13 Thomas, 553 F.3d at 1244) (internal quotations omitted). 14 In an attempt to meet its burden, Defendant relies on two 15 district court cases from the Eastern District, claiming they 16 “squarely address the circumstances [] here and confirm[] that 17 removal was proper.” Opp’n at 5 (citing Destfino v. Kennedy, 18 No. CV-F-08-1269, 2008 WL 4901195 (E.D. Cal. 2008) and Rodriguez 19 v. County of Stanislaus, No. 1:08-cv-856, 2008 WL 4765110 (E.D. 20 Cal. Oct. 30, 2008)). In Destfino, a number of served 21 defendants had not yet consented to removal at the time of the 22 plaintiffs’ motion to remand, though a number of other 23 defendants had filed a written joinder to the removal. 2008 WL 24 4901195 at *3-4. Instead of granting the motion to remand, the 25 court granted the defendant’s request for leave to file an 26 amended joinder for all remaining, served defendants. Id. 27 Contrary to Defendant’s representations, Destfino does not stand 28 for the proposition that a court may excuse the unanimity 1 requirement of § 1446 if proofs of service were not filed at the 2 time of removal. Nor does Defendant request leave to seek 3 joinder or consent from Tenet Healthcare to cure the defect in 4 the timing of removal without unanimous consent, like the 5 Destfino defendant did. 6 Turning to Rodriguez, Defendant excludes a number of other 7 arguments and facts relevant to the court’s analysis and 8 holding, including that the parties had discussed dismissing 9 other defendants, and the defendant’s arguments that the claims 10 against it could be separated. See Opp’n at 6; 2008 WL 4765110 11 at *2-6. Moreover, in Rodriguez, the court acknowledged a lack 12 of authority governing the circumstances of the case and 13 grounded its reasoning in the fact that there was a lack of 14 evidence surrounding the service of the other defendants prior 15 to the removal. Id. at *3 (“[T]here is no controlling authority 16 regarding whether or not the unserved defendant exception 17 applies in situations such as this where at the time of removal 18 the removing defendant did not have constructive notice of 19 service on any other defendants due to the fact that there was 20 no proof of service on file at the time of removal.”) (internal 21 quotations omitted). The Court disagrees with Defendant’s 22 position that these two cases find and apply a bright-line rule 23 that a defendant need only check a state-court docket prior to 24 filing a notice of removal, without making any other attempts to 25 obtain consent or joinder after learning of service of other 26 defendants within days of its notice, in order to properly 27 remove a case. This is not the state of the law surrounding the 28 application of § 1446(b)(2)(A). 1 Another district court case, Loewen v. McDonnell, is 2 instructive here, as it summarized the split of authority 3 regarding whether simply checking the docket for a proof of 4 service constitutes due diligence sufficient to overcome the 5 unanimity requirement. No. 19-cv-467, 2019 WL 2364413 (N.D. 6 Cal. June 5, 2019). As the Loewen court explained: 7 District courts vary in their findings as to “the 8 extent of a removing defendant's duty to ascertain 9 whether co-defendants have been served at the time the 10 notice of removal is filed.” Vargas v. Riley, No. 18- 11 CV-00567-JST, 2018 WL 2267731, at *3 (N.D. Cal. May 12 17, 2018) (quoting Lewis v. HSBC Bank USA, N.A., No. 13 CV 17-00234 DKW-KSC, 2017 WL 3671279, at *3-4 (D. Haw. 14 Aug. 25, 2017)). “[M]any courts . . . find that 15 diligence is lacking when removing defendants merely 16 check the state court record for proofs of service as 17 to co-defendants . . . .
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GUY PATRICK JOHNSON and No. 2:26-cv-00865-JAM VICTORIA LYNN JOHNSON, 12 individually and as Successors-in-Interest of GUY 13 ADAM JOHNSON, ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND 14 Plaintiffs, 15 v. 16 COUNTY OF STANISLAUS, et al., 17 Defendants. 18 19 This matter is before the Court on Plaintiffs Guy Patrick 20 and Victoria Lynn Johnson’s motion to remand the case to 21 Stanislaus County Superior Court. ECF No. 8 (“Mot.”). Defendant 22 County of Stanislaus filed an opposition (ECF No. 18 (“Opp’n”)), 23 and Plaintiffs filed a reply (ECF No. 21 (“Reply”)).1 For the 24 reasons detailed below, Plaintiffs’ motion is granted. 25 Last month, Defendant removed this case to federal court 26 pursuant to 28 U.S.C. §§ 1331, 1441(a), and 1446 because 27 1 This motion was determined to be suitable for decision without 28 oral argument. E.D. Cal. L.R. 230(g). 1 Plaintiffs’ complaint contains a claim for relief under a federal 2 statute, 42 U.S.C. § 1983. ECF No. 1. The complaint was 3 originally filed in Stanislaus County Superior Court on February 4 23, 2026. Id. Defendant was served on March 3, 2026, and at the 5 time Defendant filed its notice of removal here, there were no 6 proofs of service filed on the state court docket for any other 7 named defendants. See Mot. at 3; Opp’n at 2; Reply at 2. 8 However, counsel for the parties had been in contact before 9 Defendant filed the March 12 notice of removal, and on March 16, 10 proofs of service were filed for named defendants Wellpath 11 Management, Inc. and Tenet Healthcare Corporation (“Tenet 12 Healthcare”). See Opp’n at 2. Only one defendant has not been 13 served, Doctors Behavior Health Center, and neither Tenet 14 Healthcare nor Doctors Behavior Health Center have appeared in 15 this matter. See Docket. Defendant Wellpath Management, Inc., 16 however, appeared and filed a notice of consent to the removal of 17 this action here. ECF No. 14. 18 Plaintiffs timely move to remand this matter because 19 Defendant failed to obtain consent from defendant Tenet 20 Healthcare, as required by 28 U.S.C. § 1446, and otherwise failed 21 to exercise reasonable diligence. See Mot. and Reply; 28 U.S.C. 22 § 1446(b)(2)(A) (“When a civil action is removed solely under 23 section 1441(a), all defendants who have been properly joined and 24 served must join in or consent to the removal of the action.”). 25 Defendant argues Plaintiffs’ motion should be denied because the 26 matter was removed before proofs of service were filed, and it is 27 not required to seek consent from Tenet Healthcare because this 28 defendant is fraudulently joined. See Opp’n. 1 It is well-established that “[r]emoval statutes are 2 strictly construed, and any doubt about the right of removal 3 requires resolution in favor of remand. This rule of narrow 4 construction both recognizes the limited jurisdiction of federal 5 courts and protect[s] the jurisdiction of state courts.” Casola 6 v. Dexcom, Inc., 98 F.4th 947, 954 (9th Cir. 2024) (citing and 7 quoting Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 8 1244 (9th Cir. 2009) and Harris v. Bankers Life & Cas. Co., 425 9 F.3d 689, 698 (9th Cir. 2005)) (internal citations and 10 quotations omitted). “The presumption against removal means 11 that the defendant always has the burden of establishing that 12 removal is proper.” Casola, 98 F.3d at 954 (quoting Moore- 13 Thomas, 553 F.3d at 1244) (internal quotations omitted). 14 In an attempt to meet its burden, Defendant relies on two 15 district court cases from the Eastern District, claiming they 16 “squarely address the circumstances [] here and confirm[] that 17 removal was proper.” Opp’n at 5 (citing Destfino v. Kennedy, 18 No. CV-F-08-1269, 2008 WL 4901195 (E.D. Cal. 2008) and Rodriguez 19 v. County of Stanislaus, No. 1:08-cv-856, 2008 WL 4765110 (E.D. 20 Cal. Oct. 30, 2008)). In Destfino, a number of served 21 defendants had not yet consented to removal at the time of the 22 plaintiffs’ motion to remand, though a number of other 23 defendants had filed a written joinder to the removal. 2008 WL 24 4901195 at *3-4. Instead of granting the motion to remand, the 25 court granted the defendant’s request for leave to file an 26 amended joinder for all remaining, served defendants. Id. 27 Contrary to Defendant’s representations, Destfino does not stand 28 for the proposition that a court may excuse the unanimity 1 requirement of § 1446 if proofs of service were not filed at the 2 time of removal. Nor does Defendant request leave to seek 3 joinder or consent from Tenet Healthcare to cure the defect in 4 the timing of removal without unanimous consent, like the 5 Destfino defendant did. 6 Turning to Rodriguez, Defendant excludes a number of other 7 arguments and facts relevant to the court’s analysis and 8 holding, including that the parties had discussed dismissing 9 other defendants, and the defendant’s arguments that the claims 10 against it could be separated. See Opp’n at 6; 2008 WL 4765110 11 at *2-6. Moreover, in Rodriguez, the court acknowledged a lack 12 of authority governing the circumstances of the case and 13 grounded its reasoning in the fact that there was a lack of 14 evidence surrounding the service of the other defendants prior 15 to the removal. Id. at *3 (“[T]here is no controlling authority 16 regarding whether or not the unserved defendant exception 17 applies in situations such as this where at the time of removal 18 the removing defendant did not have constructive notice of 19 service on any other defendants due to the fact that there was 20 no proof of service on file at the time of removal.”) (internal 21 quotations omitted). The Court disagrees with Defendant’s 22 position that these two cases find and apply a bright-line rule 23 that a defendant need only check a state-court docket prior to 24 filing a notice of removal, without making any other attempts to 25 obtain consent or joinder after learning of service of other 26 defendants within days of its notice, in order to properly 27 remove a case. This is not the state of the law surrounding the 28 application of § 1446(b)(2)(A). 1 Another district court case, Loewen v. McDonnell, is 2 instructive here, as it summarized the split of authority 3 regarding whether simply checking the docket for a proof of 4 service constitutes due diligence sufficient to overcome the 5 unanimity requirement. No. 19-cv-467, 2019 WL 2364413 (N.D. 6 Cal. June 5, 2019). As the Loewen court explained: 7 District courts vary in their findings as to “the 8 extent of a removing defendant's duty to ascertain 9 whether co-defendants have been served at the time the 10 notice of removal is filed.” Vargas v. Riley, No. 18- 11 CV-00567-JST, 2018 WL 2267731, at *3 (N.D. Cal. May 12 17, 2018) (quoting Lewis v. HSBC Bank USA, N.A., No. 13 CV 17-00234 DKW-KSC, 2017 WL 3671279, at *3-4 (D. Haw. 14 Aug. 25, 2017)). “[M]any courts . . . find that 15 diligence is lacking when removing defendants merely 16 check the state court record for proofs of service as 17 to co-defendants . . . . Other courts allow removing 18 defendants to rely on the state court docket for filed 19 proofs of services.” Id.; see also Lopez v. BNSF Ry. 20 Co., 614 F.Supp.2d 1084, 1089 (E.D. Cal. 2007) 21 (“Defendants did not have a duty to contact 22 Plaintiffs’ counsel to investigate whether the 23 remaining defendants were served.”); Orozco v. 24 Equifirst Corp., No. CV 08–8064 PA (CWx), 2008 WL 25 5412364, at *1 (C.D. Cal. Dec. 22, 2008) (“A removing 26 defendant must exercise due diligence to ascertain if 27 other defendants have been served, and simply checking 28 if a proof of service has been filed with the court is 1 insufficient.”); Barbera v. WMC Mortg. Corp., No. 2 C 08–02677 SBA, 2009 WL 742843, at *2 (N.D. Cal. Mar. 3 18, 2009) (“[T]he obligation to join all defendants is 4 based on whether the defendant actually has been 5 served, not on the subjective knowledge of the 6 removing party.”). 7 2019 WL 2364413 at *4. Although Plaintiffs present a number of 8 cases acknowledging that reliance on the docket, alone, is not 9 necessarily sufficient, Defendant failed to acknowledge the 10 split of authority and argues its actions, here, fell within 11 well-established authority. See Mot. at 5-6; Opp’n at 4-6. At 12 a minimum, Defendant received notice within 4 days of filing its 13 notice of removal that defendant Tenet Healthcare had been 14 served, yet it failed to present any information or evidence 15 about “any meaningful efforts to obtain [their] consent” in 16 order to demonstrate diligence outside of checking the state 17 court docket before filing its notice of removal. Cf. Reply at 18 4. And, it is well-established Defendant could have cured the 19 lack of consent defect within 30 days of removal, yet Defendant 20 failed to obtain this consent, or even ask the Court for leave 21 to seek consent from Tenet Healthcare like the Destfino 22 defendants. See Loewen, 2019 WL 2364413 at *5 (“The Ninth 23 Circuit has repeatedly held that defects in removal may be cured 24 within a 30-day period after a defendant receives notice of the 25 complaint.”). For these reasons, the Court finds Defendant has 26 not met its burden to excuse its lack of compliance with the 27 mandate of § 1446(b)(2)(A). 28 /// 1 Defendant’s removal is also not saved by its fraudulent 2 joinder argument. As explained in Rodriguez: 3 The removing party must prove that there is absolutely 4 no possibility that the plaintiff will be able to 5 establish a cause of action or there has been fraud in 6 the plaintiff's pleadings of jurisdictional facts. 7 See, e.g., Green v. Amerada Hess Corp., 707 F.2d 201, 8 205 (5th Cir.1983). However, the defendant seeking 9 removal to federal court is “entitled to present the 10 facts showing the joinder to be fraudulent.” Richey v. 11 Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir.1998) 12 (citations omitted); cf. Travis v. Irby, 326 F.3d 644, 13 649 (5th Cir.2003) (trial judge may “pierce the 14 pleadings” and consider summary judgment-type 15 evidence, but contested issues of fact must be 16 resolved in plaintiff's favor). 17 2008 WL 4765110 at *7. Defendant has failed to establish 18 “there is absolutely no possibility” that Plaintiffs could 19 recover from Tenet Healthcare, nor did Defendant present 20 any evidence substantiating its arguments that Tenet 21 Healthcare is “plainly a sham defendant.” See Opp’n. 22 Defendant has failed to meet its burden here. Accord 23 Rodriguez, 2008 WL 4765110 at *7-8 (finding defendants 24 failed to meet their burden establishing fraudulent joinder 25 when defendants made similar arguments to those presently 26 before the Court and did not present any evidence 27 substantiating their position). 28 /// nn ee nnn nee nen nn nn nen nn nn nn nn OI IEE EO
1 For these reasons, Defendant has failed to establish 2 removal was proper, and Plaintiffs’ motion to remand is 3 | GRANTED. This matter is ordered REMANDED to Stanislaus 4 County Superior Court, and a certified copy of this remand 5 order shall be sent to the Superior Court (case number CV- 6 | 26-001921). 7 Given the Court’s ruling on the motion to remand (ECF 8 No. 8), the other pending motions in this case-- the 9 | motions to dismiss by Defendants Wellpath Management (ECF 10 No. 10) and County of Stanislaus (ECF No. 15)-- are hereby 11 DENIED as MOOT and the hearing on these motions is vacated. 12 IT IS SO ORDERED. 13 14 Dated: April 21, 2026 15 HN A. MENDEZ. 16 Fee UNITED pe acl JUDGE 17 18 19 20 21 22 23 24 25 26 27 28