(PS) Meyer v. CA Dept.of Water Resources

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LIAM MEYER, No. 2:20-cv-00870 KJM AC PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 CALIFORNIA DEPARTMENT OF WATER RESOURCES, CENTRAL 15 VALLEY WATER PROTECTION BOARD, et al., 16 Defendants. 17

18 19 Plaintiff is proceeding in pro per, and the case is accordingly referred to the undersigned 20 for pretrial proceedings by E.D. Cal. R. (“Local Rule”) 302(c)(21). This action was removed 21 from Sacramento County Superior Court on April 28, 2020. ECF No. 1. Pending before the 22 court are multiple motions to dismiss from various defendants (ECF Nos. 6, 10, 13), a motion by 23 plaintiff to proceed in forma pauperis (ECF No. 18), and a motion by plaintiff to file an amended 24 complaint (ECF No. 31). The motions to dismiss brought by the Central Valley Flood Protection 25 Board, et al. (ECF No. 13) and Paul Deveraux, et al. (ECF No. 10) make it clear that this court 26 lacks subject matter jurisdiction and cannot entertain this case. Accordingly, the undersigned 27 recommends that the motions to dismiss at ECF Nos. 13 and 10 be GRANTED, that all other 28 motions be DENIED as MOOT, and that this case be dismissed and closed. 1 I. Relevant Factual Background 2 Plaintiff filed his complaint in Sacramento County Superior Court on February 27, 2020. 3 ECF No. 1-1 at 1. The complaint seeks an order directing the California Department of Water 4 Resources and/or the Central Valley Water Protection Board to stop its enforcement action 5 against Meyer regarding encroachments of his property on the Sacramento River. The complaint 6 also seeks injunctive relief and damages against a long list of defendants, including numerous 7 Sacramento County and State of California water resources and flood protection entities; many of 8 their employees, officers and board members; and the Army Corps of Engineers. The Corps and 9 its employee Ryan Larson are the only federal defendants. 10 Between March 30, 2020, and April 28, 2020, plaintiff and counsel for the Reclamation 11 District 1000 Defendants met and conferred pursuant to Cal. Civ. Proc. Code § 430.41. 12 Declaration of Brian E. Hamilton (“Hamilton Decl.”) ¶ 2. Plaintiff agreed to dismiss the action in 13 its entirety without prejudice, and sent a request for dismissal with regard to all parties to 14 Sacramento County Superior Court by mail on April 20, 2020. Hamilton Decl. ¶ 3. The 15 voluntary dismissal, signed April 13, 2020 by plaintiff, dismissed the entire action including all 16 parties and all causes of action, without prejudice. ECF No. 10-2 at 4. 17 Although the voluntary dismissal was dated April 13 and mailed April 20, 2020, its entry 18 on the docket was delayed by series of closures in state court implemented as a result of the 19 COVID-19 pandemic and California’s shelter-in-place order. On March 19, 2020, the Presiding 20 Judge of the Superior Court in Sacramento County instated a court holiday for all purposes, 21 including the docketing of civil filings. ECF No. 14 at 9. On April 16, 2020, the Presiding Judge 22 extended the closure order through May 15, 2020. Id. at 12. On April 27, 2020, the Presiding 23 Judge rescinded the closure order from May 6 through May 15, thereby permitting the docketing 24 of civil filings to resume. Id. at 16. During the period after the request for dismissal was sent to 25 Sacramento County Superior Court and before entry of the dismissal on the Superior Court 26 docket, the United States Attorney removed plaintiff’s lawsuit to this court. ECF No. 1. Plaintiff 27 confirms that he dismissed the state case in its entirety at the state level and that the state court 28 “took weeks” to file the notice of dismissal. ECF No. 23 at 5. 1 II. Legal Standards 2 Defendants bring both a jurisdictional challenge and challenges asserting plaintiff’s failure 3 to state a claim. The court will address what it views as the central jurisdictional issue under Rule 4 12(b)(1), as jurisdiction is a threshold matter. Because the undersigned concludes that this court 5 lacks subject matter jurisdiction over this lawsuit and the lack of jurisdiction cannot be cured, 6 only that issue is addressed below. 7 Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense, by 8 motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific 9 claims alleged in the action. “A motion to dismiss for lack of subject matter jurisdiction may 10 either attack the allegations of the complaint or may be made as a ‘speaking motion’ attacking the 11 existence of subject matter jurisdiction in fact.” Thornhill Pub. Co. v. Gen. Tel. & Elecs. Corp., 12 594 F.2d 730, 733 (9th Cir. 1979). 13 When a party brings a facial attack to subject matter jurisdiction, that party contends that 14 the allegations of jurisdiction contained in the complaint are insufficient on their face to 15 demonstrate the existence of jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 16 (9th Cir. 2004). In a Fed. R. Civ. P. 12(b)(1) motion of this type, the plaintiff is entitled to 17 safeguards similar to those applicable when a Fed. R. Civ. P. 12(b)(6) motion is made. See Sea 18 Vessel, Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir. 1994); Osborn v. United States, 918 F.2d 724, 19 729 n.6 (8th Cir. 1990). The factual allegations of the complaint are presumed to be true, and the 20 motion is granted only if the plaintiff fails to allege an element necessary for subject matter 21 jurisdiction. Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cty., 343 F.3d 1036, 22 1039 n.1 (9th Cir. 2003); Miranda v. Reno, 238 F.3d 1156, 1157 n.1 (9th Cir. 2001). However, a 23 court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Ashcroft 24 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 25 (2007)). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual 26 enhancement.’” Id. (quoting Bell Atlantic Corp., 550 U.S. at 557) (alteration in original). 27 //// 28 //// 1 III. Discussion 2 Defendants are correct that this court lacks jurisdiction because the case was dismissed in 3 state court prior to removal. “[V]oluntary dismissal of an entire action deprives the court of both 4 subject matter and personal jurisdiction in that case, except for the limited purpose of awarding 5 costs and statutory attorney fees.” Gogri v. Jack in the Box Inc., 166 Cal. App. 4th 255, 261 6 (2008). Here, plaintiff filed a request for voluntary dismissal of his entire case in state court on 7 April 13, 2020. Although the clerk did not enter the dismissal until May 6, 2020, Rule 8 8.817(b)(1) of the California Rules of Court (2020 ed.) provides, “A document is deemed filed on 9 the date the clerk receives it.”1 While the date the court “received” the filing is complicated by 10 the fact that the notice of dismissal was mailed during an unexpected, pandemic-induced, 11 extended court holiday, the result here is not impacted because the same can be said of the notice 12 of removal. Even assuming the clerk did not “receive” the notice of removal until returning to 13 work on May 6, 2020, the notice of dismissal, having been delivered first, would be “received” 14 first, albeit earlier on the same day as the notice of removal, due to the re-opening of the court. 15 As plaintiff filed his request for dismissal before trial, under the California rules his right 16 to voluntary dismissal is absolute, and the clerk cannot deny the filing. Cal. Civ. Proc. Code § 17 581(b)(1). Such voluntary dismissal is “available to plaintiff as a matter of right and is 18 accomplished by filing with the clerk a written request therefor. If in proper form, the dismissal is 19 effective immediately.” Associated Convalescent Enterprises v. Carl Marks & Co., 33 Cal. App. 20 3d 116, 120 (1973). After a request for dismissal is effectuated, a trial court cannot enter further 21 orders in the dismissed action. Conservatorship of Martha P., 117 Cal. App. 4th 857, 866 (2004). 22 Because the April 13, 2020 filing of voluntary dismissal divested the Superior Court of 23 jurisdiction over plaintiff’s action, it necessarily deprives this court of jurisdiction as well because 24 by the time the case was removed, it had already been dismissed by operation of law. See Gogri,

25 1 The effectiveness of plaintiff’s voluntary dismissal is governed solely by reference to California 26 law, as it was filed before the notice of removal. See Fed. R. Civ. P. 81(c)(1) (“These rules apply to a civil action after it is removed from state court.”) (emphasis added); see Taylor v. Bailey 27 Tool Mfg. Co., 744 F.3d 944, 946 (5th Cir. 2014) (holding that the Federal Rules of Civil Procedure “do not provide for retroactive application to the procedural aspects of a case that 28 occurred in state court prior to removal to federal court”). wOAOe 2 INIT ENN RAMU VO PI ie Ye VI

1 | 166 Cal. App. 4th at 261. Removal is not effective until a copy of the removal is filed with the 2 || clerk of the state court. 28 U.S.C. § 1446(d) (2018). The Superior Court could not have properly 3 || entered the notice of removal, as the effect of voluntary dismissal was immediate, and the 4 | voluntary dismissal was filed first. Conservatorship of Martha P., 117 Cal. App. 4th at 866. 5 Because the California Superior Court no longer possessed an active case at the time of 6 || removal, removal was never effective. See 28 U.S.C. § 1446(d). Under the circumstances of this 7 | case, the lack of subject matter jurisdiction is not a defect that can be cured by amendment. 8 || Accordingly, the undersigned recommends dismissal of this case in its entirety. 9 IV. Conclusion 10 For the reasons explained above, this court lacks jurisdiction over the action as a whole. 11 | Accordingly, the undersigned HEREBY RECOMMENDS that: 12 1. Defendants’ motions to dismiss, ECF Nos. 10 and 13, be GRANTED; 13 2. All remaining motions be DENIED as moot; and 14 3. This case as a whole be DISMISSED. 15 These findings and recommendations are submitted to the United States District Judge 16 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 17 || after being served with these findings and recommendations, any party may file written 18 || objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a 19 || document should be captioned “Objections to Magistrate Judge’s Findings and 20 || Recommendations.” Failure to file objections within the specified time may waive the right to 21 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998), as 22 || amended on denial of reh’g (Nov. 24, 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 23 | 1991). 24 || DATED: July 9, 2020 ~ 25 Atttenr—Chore ALLISON CLAIRE 26 UNITED STATES MAGISTRATE JUDGE 27 28