(PC) Miller v. California Department of Corrections and Rehabilitation et al, No. 1:2010cv01428 - Document 21 (E.D. Cal. 2011)

Court Description: ORDER ADOPTING 19 FINDINGS AND RECOMMENDATIONS and ORDER GRANTING 8 Plaintiff's Motion to Remand, signed by Chief Judge Anthony W. Ishii on 3/10/2011. CASE REMANDED to Fresno County Superior Court. Copy of remand order sent to other court. CASE CLOSED. (Jessen, A)

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(PC) Miller v. California Department of Corrections and Rehabilitation et al Doc. 21 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CHARLES A. MILLER, 11 12 CASE NO. 1:10-CV-1428 AWI-SMS (PC) Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND REMANDING CASE TO STATE COURT v. 13 14 CALIFORNIA DEPARTMENT OF (Doc. No. 8) CORRECTIONS AND REHABILITATION, et al., 15 Defendants. 16 / 17 18 This case was removed from Fresno County Superior Court on August 6, 2010. On August 19 27, 2010, Plaintiff filed a motion to remand. Plaintiff identified several procedural problems with 20 the removal, including a violation of the unanimity rule. On November 30, 2010, the Magistrate 21 Judge issued a Findings and Recommendation that recommended granting Plaintiff’s motion and 22 remanding the matter to state court. On December 29, 2010, Defendants filed objections to the 23 Findings and Recommendation. 24 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the undersigned has 25 conducted the appropriate de novo review consistent with Defendants’ objections. 26 The Court is in general agreement with the Findings and Recommendation. However, 27 Defendants submitted new evidence (a declaration from the Litigation Coordinator who received 28 1 Dockets.Justia.com 1 the summonses in this case) in their objections that was not submitted to the Magistrate Judge. 2 The evidence indicates that, despite the Fresno County Superior Court notation, Defendant 3 Medina has not been served. Why Defendants did not submit this declaration to the Magistrate 4 Judge is a mystery. This new evidence should have been presented to the Magistrate Judge 5 because it is evidence that would have affected the Findings and Recommendation. While the 6 Court is not obligated to consider this new evidence, it will do so for this motion. The new 7 evidence creates a genuine question concerning whether service has been accomplished against 8 Defendant Medina. As such, the Court cannot adopt the Findings and Recommendation with 9 respect to the analysis of Defendant Medina. 10 Nevertheless, the Court is satisfied that the unanimity rule has been violated. See Atlantic 11 Nat’l Trust, LLC v. Mt. Hawley Ins. Co., 621 F.3d 931, 938 (9th Cir. 2010). Defendants removed 12 this case without consultation with, or consent from, Defendant Anderson and Defendant Chuddy, 13 and did so at a time when Chudy and Anderson were not represented by the same attorney. They 14 were not represented by the same attorney as the removing Defendants because the Office of 15 Attorney General had not yet received signed requests for representation. See September 13, 16 2010, Ramsey Dec. ¶¶ 4, 6, 7. Defendants’ counsel knew that Chudy and Anderson had been 17 served on July 22, 2010, but did nothing to contact them regarding the August 6, 2010, removal. 18 Defendants’ counsel did not receive the signed request for representation from Chudy until 19 August 10, 2006, and from Anderson until September 7, 2010. Chudy’s and Anderson’s consent 20 to removal was filed on September 13, 2010. This is beyond the time to correct the removal 21 deficiency. See Prize Frize, Inc. v. Matrix (U.S.), Inc., 167 F.3d 1261, 1266 (9th Cir. 1999). The 22 removal statute is strictly construed. See Luther v. Countrywide Home Loans Servicing LP, 533 23 F.3d 1031, 1034 (9th Cir. 2008). The Court agrees with the Findings and Recommendation that 24 there is an insufficient explanation for not pro-actively seeking consent from Chudy and Anderson 25 prior to removal. Remand for violation of the unanimity rule is appropriate.1 See 28 U.S.C. § 26 1446; 28 U.S.C. § 1447(c); Altantic, 621 F.3d at 940; Prize Frize, 167 F.3d at 1266 & n.4. 27 28 1 The Court does not find Lewis v. City of Fresno, 627 F.Supp.2d 1179 (E.D. Cal. 2008) because, unlike this case, there was significant evidence in Lewis of the City’s intent to join the removal. See id. at 1186. 2 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The Findings and Recommendations, filed November 30, 2010, are ADOPTED to the 3 extent consistent with the above analysis; 4 2. Plaintiff’s motion to remand is GRANTED pursuant to 28 U.S.C. § 1447(c); 5 3. The Clerk shall forthwith REMAND this case to the Fresno County Superior Court and 6 CLOSE this case. 7 8 IT IS SO ORDERED. 9 Dated: 10 ciem0h March 10, 2011 CHIEF UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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