Herrera v. County of San Benito

Opinion

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10 ROSARIO HERRERA, Case No. 24-cv-01133-NC 11 Plaintiff, ORDER TO SHOW CAUSE RE: v. 13 Re: ECF 1 COUNTY OF SAN BENITO, 14 Defendant. 15 16 17 Plaintiff Rosario Herrera filed suit against Defendant County of San Benito in state 18 court. Herrera’s first amended complaint (“FAC”) alleged several causes of action, 19 including claims under 42 U.S.C. § 1983. Herrera purportedly served Defendant with the 20 FAC on or about January 18, 2024. Thirty-six days later, on February 23, 2024, Defendant 21 removed the case to federal court. ECF 1. Plaintiff removed the case based on the 22 presence of a federal question. Id. ¶ 9. 23 However, Defendant’s removal appears untimely under 28 U.S.C. § 1446(b). 24 “Untimeliness of removal is, of course, a waivable defect.” McGuire v. California, No. 25 09-cv-5918-VRW (PR), 2011 WL 97736, at *1 (N.D. Cal. Jan. 12, 2011). Indeed, 26 Defendant avers that Plaintiff “has consented to removal so long as the procedural aspects 27 were met.” ECF 1 ¶ 10 (emphasis added). This latter phrase gives the Court pause as it 1 removal. 28 U.S.C. § 1446(b). Accordingly, the Court ORDERS the parties to file a joint 2 statement addressing the issue of Herrera’s waiver. This statement must be filed by March 3 } 1, 2024. 5 6 Dated: February 26, 2024 hic ——_ _ NATHANAEL M. COUSINS 7 United States Magistrate Judge 8 9 10 11 12 E 13

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