1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 LORI ANN WILEY, and CHARLES CASE NO. 1:22-CV-0881 AWI CDB WALLACE HANSON IV., 9 Plaintiffs ORDER ON MOTIONS TO DISMISS 10 AND MOTION TO REMAND v. 11 KERN HIGH SCHOOL DISTRICT, et al., (Doc. Nos. 6, 7, 9, 15) 12 Defendants 13 14 15 This case was removed by Defendant Kern County (“the County”) from the Kern County 16 Superior Court on July 15, 2022, on the basis of federal question jurisdiction. Currently before the 17 Court is Defendant Kern High School District (“KHSD”)’s1 motion to dismiss and motion to 18 remand and the County’s motion to remand. For the reasons that follow, the motion to remand 19 will be granted and the motions to dismiss will be denied without prejudice. 20 21 RELEVANT BACKGROUND 22 Plaintiffs filed their complaint in the Kern County Superior Court on June 1, 2022. See 23 Doc. Nos. 1-1. The Complaint contains twelve causes of action that stem from a verbal altercation 24 between Plaintiffs and KHSD staff, which culminated in the arrest of Plaintiffs by KHSD law 25 enforcement officers pursuant to an arrest warrant. See id. State law claims and claims under 42 26 U.S.C. § 1983 are alleged. See id. 27 1 There are a number of KHSD employees/personnel who are named as Defendants. KHSD and its employees are 28 represented by the same counsel. For purposes of this motion, a reference to “KHSD” includes both the Kern High 1 The County was served with the Complaint on June 16, 2022. 2 On July 5, 2022, Plaintiffs filed a First Amended Complaint. The amended complaint 3 continues to allege state and federal causes action. 4 On July 15, 2022, the County removed the matter to this Court on the basis of federal 5 question jurisdiction. See Doc. No. 1. The notice of removal states that no other defendant had 6 been properly joined and served and, as a result, no consents to removal were needed. See id. 7 On July, 21, 2022, the County filed a Rule 12(b)(6) motion to dismiss. See Doc. No. 6. 8 On July 27, 2022, KHSD filed a Rule 12(b)(6) motion to dismiss. See Doc. No. 7. 9 However, because the July 27 motion was filed without a signature, KHSD refiled a signed Rule 10 12(b)(6) motion to dismiss on July 28, 2022. See Doc. Nos. 8, 9. With respect to the federal 11 claims, KHSD argues that Eleventh Amendment immunity and qualified immunity apply. See 12 Doc. No. 9. Additionally, the notice of motion in relevant part states: “Due to the removal of this 13 action without these defendants’ consents or prior knowledge, and the timelines imposed by the 14 Federal Rules of Civil Procedure, Defendants were unable to timely meet and confer with the 15 plaintiff[s] . . . .” Id. at 2:27-3:2. KHSD’s motion also includes the declaration of its counsel. See 16 id. at 14. In the declaration, KHSD’s counsel explains that Plaintiffs served KHSD with the 17 complaint on June 16, 2022, and served KHSD with the first amended complaint on July 6, 2022, 18 but KHSD has not responded to the amended complaint. See id. at 14:11-16. KHSD’s counsel 19 states that the County removed the case without the knowledge or consent of KHSD. See id. at 20 14:17-19. 21 On July 29, 2022, the County filed an acknowledgment of defective removal in which it 22 acknowledged that Plaintiffs did not have to file a notice of service of process and that removal 23 was defective for failure to obtain the consent of properly served and joined defendants. See Doc. 24 No. 10. 25 On August 4 and August 9, Plaintiffs filed their opposition to the motions to dismiss. See 26 Doc. Nos. 12, 13. Also on August 9, Plaintiffs filed objections to the notice of removal. See Doc. 27 No. 14. The notice states that Plaintiffs object to KHSD’s joinder or acquiescence in the defective 28 removal. See id. 1 On August 12, 2022, KHSD filed its motion to remand. See Doc. No. 15. Also on August 2 12, 2022, the County filed a statement of non-opposition to the motion to remand. See Doc. No. 3 16. 4 On August 15, 2022, Plaintiffs filed an opposition to the motion remand and a request for 5 attorneys’ fees and costs. See Doc. No. 19. 6 On August 24, 2022, KHSD filed their reply. 7 The Court subsequently took all pending motions under submission without oral argument. 8 See Doc. Nos. 21, 23. 9 10 I. MOTION TO REMAND 11 Defendants’ Argument 12 KHSD argues that all properly joined and served defendants must join in a removal 13 petition. Because the County did not obtain KHSD’s consent even though KHSD had been 14 properly joined and served before July 15, the notice of removal is defective and remand is 15 appropriate. Additionally, KHSD argues that it did not waive its right to move to remand by filing 16 its motion to dismiss. KHSD argues that it had a tight deadline to answer the complaint, the 17 motion to remand was still made within 30 days of the removal, the notice of motion states that 18 Defendants did not consent to removal, and Defendants are raising the defense of Eleventh 19 Amendment immunity which further demonstrates a lack of consent. 20 Plaintiff’s Opposition 21 Plaintiffs argue that all parties agree that this case was improvidently removed, even 22 though the Court otherwise would have subject matter jurisdiction. However, by waiting until two 23 Rule 12(b)(6) motion to dismiss had been filed before filing the motion to remand, KHSD waived 24 their right to request remand. Moreover, by waiting to file the remand motion after the two Rule 25 12(b)(6) motions had been filed, KHSD unfairly got a foreshadowing of the problems they might 26 face by remaining in federal court. The timing of the motion to remand was tactically unfair and 27 unduly burdensome, which supports an award of fees in the amount $8,135.10. However, if 28 remand is ordered, then statutory attorneys’ fees in the amount of $33,596.10 should be awarded. 1 Legal Standard 2 Removal statutes are strictly construed against removal, and any doubt as to the propriety 3 of removal is resolved against removability. Luther v. Countrywide Home Loans, 533 F.3d 1031, 4 1034 (9th Cir. 2008). 28 U.S.C. § 1446 establishes the procedures to be followed by a defendant 5 in removing a case from state court to federal court. Progressive W. Ins. Co. v. Preciado, 479 F.3d 6 1014, 1018 (9th Cir. 2007). In pertinent part § 1446 states: “all defendants who have been 7 properly joined and served in the action must join in or consent to the removal of the action.” 28 8 U.S.C. § 1446(b)(2)(A); see Destfino v. Reiswig, 630 F.3d 952, 956 (9th Cir. 2011); Emrich v. 9 Touche Ross & Co., 846 F.2d 1190, 1193 n.1 (9th Cir. 1988). Only defendants who have been 10 properly served must join in or consent to the removal. Destfino, 630 F.3d at 956; Emrich, 846 11 F.2d at 1193 n.1. Defendants who have been improperly served, see Destfino, 630 F.3d at 956-57, 12 or who have not been served, Salveson v. W. States Bankcard Ass’n, 731 F.2d 1423, 1429 (9th 13 Cir. 1984), or who are “nominal, unknown or fraudulently joined” defendants, Emrich, 846 F.2d at 14 1193 n.1, are not required to join in or consent to removal. A violation of the defendant unanimity 15 rule, i.e. the failure to obtain the joinder or consent of all properly served defendants, is a 16 procedural defect.
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 LORI ANN WILEY, and CHARLES CASE NO. 1:22-CV-0881 AWI CDB WALLACE HANSON IV., 9 Plaintiffs ORDER ON MOTIONS TO DISMISS 10 AND MOTION TO REMAND v. 11 KERN HIGH SCHOOL DISTRICT, et al., (Doc. Nos. 6, 7, 9, 15) 12 Defendants 13 14 15 This case was removed by Defendant Kern County (“the County”) from the Kern County 16 Superior Court on July 15, 2022, on the basis of federal question jurisdiction. Currently before the 17 Court is Defendant Kern High School District (“KHSD”)’s1 motion to dismiss and motion to 18 remand and the County’s motion to remand. For the reasons that follow, the motion to remand 19 will be granted and the motions to dismiss will be denied without prejudice. 20 21 RELEVANT BACKGROUND 22 Plaintiffs filed their complaint in the Kern County Superior Court on June 1, 2022. See 23 Doc. Nos. 1-1. The Complaint contains twelve causes of action that stem from a verbal altercation 24 between Plaintiffs and KHSD staff, which culminated in the arrest of Plaintiffs by KHSD law 25 enforcement officers pursuant to an arrest warrant. See id. State law claims and claims under 42 26 U.S.C. § 1983 are alleged. See id. 27 1 There are a number of KHSD employees/personnel who are named as Defendants. KHSD and its employees are 28 represented by the same counsel. For purposes of this motion, a reference to “KHSD” includes both the Kern High 1 The County was served with the Complaint on June 16, 2022. 2 On July 5, 2022, Plaintiffs filed a First Amended Complaint. The amended complaint 3 continues to allege state and federal causes action. 4 On July 15, 2022, the County removed the matter to this Court on the basis of federal 5 question jurisdiction. See Doc. No. 1. The notice of removal states that no other defendant had 6 been properly joined and served and, as a result, no consents to removal were needed. See id. 7 On July, 21, 2022, the County filed a Rule 12(b)(6) motion to dismiss. See Doc. No. 6. 8 On July 27, 2022, KHSD filed a Rule 12(b)(6) motion to dismiss. See Doc. No. 7. 9 However, because the July 27 motion was filed without a signature, KHSD refiled a signed Rule 10 12(b)(6) motion to dismiss on July 28, 2022. See Doc. Nos. 8, 9. With respect to the federal 11 claims, KHSD argues that Eleventh Amendment immunity and qualified immunity apply. See 12 Doc. No. 9. Additionally, the notice of motion in relevant part states: “Due to the removal of this 13 action without these defendants’ consents or prior knowledge, and the timelines imposed by the 14 Federal Rules of Civil Procedure, Defendants were unable to timely meet and confer with the 15 plaintiff[s] . . . .” Id. at 2:27-3:2. KHSD’s motion also includes the declaration of its counsel. See 16 id. at 14. In the declaration, KHSD’s counsel explains that Plaintiffs served KHSD with the 17 complaint on June 16, 2022, and served KHSD with the first amended complaint on July 6, 2022, 18 but KHSD has not responded to the amended complaint. See id. at 14:11-16. KHSD’s counsel 19 states that the County removed the case without the knowledge or consent of KHSD. See id. at 20 14:17-19. 21 On July 29, 2022, the County filed an acknowledgment of defective removal in which it 22 acknowledged that Plaintiffs did not have to file a notice of service of process and that removal 23 was defective for failure to obtain the consent of properly served and joined defendants. See Doc. 24 No. 10. 25 On August 4 and August 9, Plaintiffs filed their opposition to the motions to dismiss. See 26 Doc. Nos. 12, 13. Also on August 9, Plaintiffs filed objections to the notice of removal. See Doc. 27 No. 14. The notice states that Plaintiffs object to KHSD’s joinder or acquiescence in the defective 28 removal. See id. 1 On August 12, 2022, KHSD filed its motion to remand. See Doc. No. 15. Also on August 2 12, 2022, the County filed a statement of non-opposition to the motion to remand. See Doc. No. 3 16. 4 On August 15, 2022, Plaintiffs filed an opposition to the motion remand and a request for 5 attorneys’ fees and costs. See Doc. No. 19. 6 On August 24, 2022, KHSD filed their reply. 7 The Court subsequently took all pending motions under submission without oral argument. 8 See Doc. Nos. 21, 23. 9 10 I. MOTION TO REMAND 11 Defendants’ Argument 12 KHSD argues that all properly joined and served defendants must join in a removal 13 petition. Because the County did not obtain KHSD’s consent even though KHSD had been 14 properly joined and served before July 15, the notice of removal is defective and remand is 15 appropriate. Additionally, KHSD argues that it did not waive its right to move to remand by filing 16 its motion to dismiss. KHSD argues that it had a tight deadline to answer the complaint, the 17 motion to remand was still made within 30 days of the removal, the notice of motion states that 18 Defendants did not consent to removal, and Defendants are raising the defense of Eleventh 19 Amendment immunity which further demonstrates a lack of consent. 20 Plaintiff’s Opposition 21 Plaintiffs argue that all parties agree that this case was improvidently removed, even 22 though the Court otherwise would have subject matter jurisdiction. However, by waiting until two 23 Rule 12(b)(6) motion to dismiss had been filed before filing the motion to remand, KHSD waived 24 their right to request remand. Moreover, by waiting to file the remand motion after the two Rule 25 12(b)(6) motions had been filed, KHSD unfairly got a foreshadowing of the problems they might 26 face by remaining in federal court. The timing of the motion to remand was tactically unfair and 27 unduly burdensome, which supports an award of fees in the amount $8,135.10. However, if 28 remand is ordered, then statutory attorneys’ fees in the amount of $33,596.10 should be awarded. 1 Legal Standard 2 Removal statutes are strictly construed against removal, and any doubt as to the propriety 3 of removal is resolved against removability. Luther v. Countrywide Home Loans, 533 F.3d 1031, 4 1034 (9th Cir. 2008). 28 U.S.C. § 1446 establishes the procedures to be followed by a defendant 5 in removing a case from state court to federal court. Progressive W. Ins. Co. v. Preciado, 479 F.3d 6 1014, 1018 (9th Cir. 2007). In pertinent part § 1446 states: “all defendants who have been 7 properly joined and served in the action must join in or consent to the removal of the action.” 28 8 U.S.C. § 1446(b)(2)(A); see Destfino v. Reiswig, 630 F.3d 952, 956 (9th Cir. 2011); Emrich v. 9 Touche Ross & Co., 846 F.2d 1190, 1193 n.1 (9th Cir. 1988). Only defendants who have been 10 properly served must join in or consent to the removal. Destfino, 630 F.3d at 956; Emrich, 846 11 F.2d at 1193 n.1. Defendants who have been improperly served, see Destfino, 630 F.3d at 956-57, 12 or who have not been served, Salveson v. W. States Bankcard Ass’n, 731 F.2d 1423, 1429 (9th 13 Cir. 1984), or who are “nominal, unknown or fraudulently joined” defendants, Emrich, 846 F.2d at 14 1193 n.1, are not required to join in or consent to removal. A violation of the defendant unanimity 15 rule, i.e. the failure to obtain the joinder or consent of all properly served defendants, is a 16 procedural defect. See Destfino, 630 F.3d at 956-57; Atlantic Nat’l Trust LLC v. Mt. Hawley Ins. 17 Co., 621 F.3d 931, 938 (9th Cir. 2010). Further, the failure of a defendant to affirmatively explain 18 the absence of a co-defendant in the notice of removal is a procedural defect. Prize Frize, Inc. v. 19 Matrix, Inc., 167 F.3d 1261, 1266 (9th Cir. 1999). An aggrieved party is responsible for bringing 20 procedural defects in the removal to the attention of the district court through a timely motion to 21 remand. See Polo v. Innoventions Int'l, LLC, 833 F.3d 1193, 1196 (9th Cir. 2016). Once a party 22 raises a procedural defect in the removal, it is the removing defendant’s burden to show 23 compliance with the pertinent procedural requirement. See Gomez v. Global Video Games, 2016 24 U.S. Dist. LEXIS 98305, *2 (C.D. Cal. July 26, 2016); Bea v. Encompass Ins. Co., 2013 U.S. 25 Dist. LEXIS 58251, *5 (N.D. Cal. Apr. 23, 2013); Riggs v. Plaid Pantries, Inc., 233 F. Supp. 2d 26 1260, 1264 (D. Or. 2001). 27 Additionally, under 28 U.S.C. § 1447(c), the Court may require payment of attorneys’ fees 28 and costs incurred as a result of an improper removal. “Absent unusual circumstances, courts may 1 award attorney’s fees under § 1447(c) only where the removing party lacked an objectively 2 reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126 3 S. Ct. 704, 163 L. Ed. 2d 547 (2005); Chan Healthcare Group, PS v. Liberty Mut. Fire Ins. Co., 4 844 F.3d 1133, 1141 (9th Cir. 2017). “[R]emoval is not objectively unreasonable because the 5 removing party’s arguments lack merit, or else attorney’s fees would always be awarded whenever 6 remand is granted.” Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062, 1065 (9th Cir. 2008). 7 Discussion 8 1. Procedural Defect 9 The parties do not dispute that KHSD was a properly served and joined defendant for 10 purposes of § 1446 at the time of removal. There is also no dispute that the KHSD did not join the 11 notice of removal or consent to the removal when the matter was removed to this Court, or that 12 KHSD’s motion to remand is timely. Thus, the parties agree that there was violation of the 13 procedural rule of unanimity and that the issue has been timely raised. What is at issue is whether 14 KHSD has somehow consented or waived the ability to seek remand. 15 Neither side has cited the Court to any decision by the Ninth Circuit that has found that a 16 party has waived the right to challenge a procedural defect in the removal process by first filing a 17 motion to dismiss. The Eighth Circuit has held that the unanimity requirement was satisfied after 18 a non-consenting defendant filed a motion to dismiss that was supported by a brief that expressed 19 that removal was appropriate. See Christiansen v. W. Branch Cmty. Sch. Dist., 674 F.3d 927, 933 20 (8th Cir. 2012). However, the Eighth Circuit limited Christiansen to its facts and declined to 21 decide whether a motion to dismiss that was silent on the issue of removal would satisfy the 22 unanimity rule. See id. The Court recognizes that Christiansen is not directly on point and raises 23 a slightly different question. Nevertheless, Christiansen indicates that there should be some form 24 of affirmative conduct or representation within a motion to dismiss in order to satisfy the rule 25 unanimity by finding consent. 26 In this case, there is not an affirmation of the removal process, nor is there even ambiguous 27 silence. Instead, there is a motion to dismiss that states removal was accomplished without the 28 consent of KHSD. KHSD’s motion does not state that it now consents or that it is intending to 1 ignore or waive its lack of consent. It is unknown why KHSD’s motion (and supporting 2 declaration) would state that removal was accomplished without consent if KHSD did not intend 3 to somehow raise or re-raise the consent issue at a later time. After all, KHSD’s consent or lack 4 thereof has absolutely no bearing on whether the first amended complaint should be dismissed 5 under Rule 12(b)(6) for failure to state a plausible claim. Given KHSD’s express statement that 6 removal was accomplished without its consent, as well as its admittedly timely motion to remand, 7 the Court cannot view KHSD’s motion to dismiss as either a consent to the removal process or a 8 waiver of the rule of unanimity procedural defect. Cf. id.; Luther, 533 F.3d at 1034 (doubts as to 9 removal are resolved against removal). 10 Because the County’s notice of removal violated the rule of unanimity, and that defect has 11 not been cured, the Court will remand this case. See 28 U.S.C. § 1447(c); Atlantic Nat’l, 621 F.3d 12 at 940. 13 2. Pending Rule 12(b) Motions 14 Because the Kern County Superior Court now will be handling this case, and because the 15 Court is required to remand this matter due to a defective removal, the Court will not address the 16 substance of Defendants’ Rule 12(b) motions. Instead, for the sake of its own docket and in the 17 interests of comity, the Court will deny the Rule 12(b) motions without prejudice to refiling in 18 state court. 19 3. Sanctions 20 In light of the remand, Plaintiffs are requesting approximately $34,000 in fees in costs 21 because they had to oppose two motions to dismiss and this motion to remand. Based on the 22 arguments raised by Plaintiffs, the Court will not impose fees. 23 First, the Court has rejected Plaintiffs’ arguments and found that removal is appropriate. 24 Second, the Rule 12(b) motions are fully briefed, but they remain undecided. Nothing suggests 25 that the issues raised in the briefing are no longer relevant or will no longer be pursued by the 26 Defendants. The Court is unaware of any obstacle that would prevent Defendants from rebranding 27 their Rule 12(b) motions to demurrers before the Kern County Superior Court. It does not appear 28 that the issues raised by Defendants will be going away, and it is unclear how briefing the matters 1 | prior to remand prejudiced Plaintiffs or somehow gave Defendants an unfair advantage. The first 2 | amended complaint either pleads viable causes of action in light of its allegations contained or the 3 | defenses pursued, or it does not. The result of the motion practice in the Superior Court should 4 materially change simply because briefing was completed in this Court. 5 6 ORDER 7 Accordingly, IT IS HEREBY ORDERED that: 8 Defendant’s motion to remand (Doc. No. 15) is GRANTED pursuant to 28 U.S.C. § 9 1447(c); 10 This case is REMANDED forthwith to the Kern County Superior Court; and 11 Defendants’ respective motions to dismiss (Doc. Nos. 6, 7, and 9) are DENIED without 12 prejudice to re-filing in the Kern County Superior Court. 13 4 IT IS SO ORDERED. 15 Dated: _ October 11, 2022 —= ZS Cb □□ — SENIOR DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28