Koklich v. California Department of Corrections & Rebiliatation et al
Filing
34
ORDER REQUIRING DEFENDANTS to Provide Additional Briefing Related to 22 Plaintiff's Motion to Remand Action, signed by Magistrate Judge Dennis L. Beck on 11/10/2011. Additional briefing due within thirty (30) days. (Jessen, A)
<![CDATA[
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
BRUCE KOKLICH,
10
Plaintiff,
11
12
1:11cv01403 DLB PC
ORDER REQUIRING DEFENDANTS TO
PROVIDE ADDITIONAL BRIEFING
RELATED PLAINTIFF’S MOTION TO
REMAND ACTION
v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
13
Defendants.
14
/
15
16
17
I.
Background
Plaintiff Bruce Koklich (“Plaintiff”) filed this civil rights action in Fresno County
18
Superior Court on August 25, 2010. The Complaint alleges causes of action under both 42
19
U.S.C. § 1983 and state law. Plaintiff names over 30 Defendants.
20
State Court Proceedings1
21
On November 2, 2010, Defendant J. Chudy, M.D., was the first defendant served with the
22
23
24
Complaint. Defendant James Yates was served on November 16, 2010.
On January 24, 2011, Defendants Chudy and Yates filed a Demurrer. On February 25,
2011, the Demurrer was withdrawn and Defendants filed an Answer. On March 22, 2011,
25
26
27
28
1
The facts of the State Court proceedings are taken from the docket of Fresno County Superior Court Case
10CECG02988. The Court may take judicial “notice of proceedings in other courts, both within and without the
federal system, if those proceedings have a direct relation to matters at issue.” Bias v. Moynihan, 508 F.3d 1212,
1225 (9th Cir. 2007) (internal quotation marks and citation omitted).
1
1
Defendants filed a Motion for Judgment on the Pleadings.
2
Defendant Kalisher was served on March 28, 2011.
3
Defendant Chudy2 filed a Demurrer on April 8, 2011. The parties were also involved in
4
discovery disputes in April 2011.
5
On May 4, 2011, the Honorable Donald Black issued a tentative ruling (1) granting the
6
Motion for Judgment on the Pleadings as to the entire Complaint, with leave to amend, against
7
Defendant Chudy; and (2) denying the Motion as to the Seventh and Eighth Causes of Action
8
against Defendant Yates. This tentative ruling was adopted by the Court on June 17, 2011.
9
There is no indication on the docket that Plaintiff filed an Amended Complaint against Defendant
10
Chudy.
11
Defendant Felix Igbinosa, M.D., was served on July 14, 2011.
12
Defendant Yates and Kalisher filed an Answer on July 15, 2011.
13
On July 18, 2011, Defendant California Department of Corrections and Rehabilitation
14
(“CDCR”) was served.
15
Defendant P. Mendoza was served on July 20, 2011.
16
Defendants A. Walker, J. Babcock and J. Ward were served on July 28, 2011.
17
On August 17, 2011, Defendant CDCR filed a Demurrer. The Demurrer was set to be
18
19
20
heard on September 28, 2011.
On August 19, 2011, a notation on the docket indicates that Defendant Chudy filed a
Notice of Removal.
21
On August 22, 2011, Defendant Igbinosa filed an Answer.
22
Defendant Yates filed a Notice of Removal on September 7, 2011.
23
On September 8, 2011, the Court removed the Demurrer from calendar based on the
24
25
Notices of Removal.
Defendants Chudy, Yates, Kalisher, Igbinosa, Mendoza and CDCR were represented by
26
27
28
2
The State Court docket does not list all moving Defendants and it is therefore possible that other
Defendants joined in this demurrer. In fact, Defendant Kalisher was also likely a moving party since he filed a reply
on May 16, 2011.
2
1
Williams and Associates throughout the State Court action. Williams and Associates continues
2
to represent these Defendants before this Court.
3
Proceedings Before This Court
4
Defendant Mendoza filed a Notice of Removal on August 18, 2011, based on this Court’s
5
original jurisdiction. According to the Notice and the Declaration of Matthew Ross Wilson
6
(“Wilson Dec.”), Defendants Yates, Chudy, Kalisher, Igbinosa and CDCR consent to removal.
7
Wilson Dec., ¶ 4.
8
Mr. Wilson also states that on August 16, 2011, he contacted Martin Dodd, counsel for
9
Defendant J. Clark Kelso, to determine the status of service on Defendant Kelso. Mr. Wilson
10
was informed that Defendant Kelso had been served and that he consented to removal. Wilson
11
Dec., ¶ 5. After inquiring with CDCR and reviewing the State Court document, Mr. Wilson
12
determined that no other Defendants had been served. Wilson Dec., ¶¶ 6, 7.
13
On August 25, 2011, Defendants Babcock, Ward and Walker filed a joinder in Notice of
14
Removal. Defendant Lt. McCoy joined in the Notice of Removal on September 7, 2011.
15
Defendants Babcock, Ward, Walker and McCoy are also represented by Williams and
16
Associates.
17
Also on September 7, 2011, Defendant Kelso filed a Notice of Related Case. The Notice
18
indicated that Defendant Kelso was served with the State Court complaint on August 8, 2011.
19
He was not served, however, with the August 18, 2011, notice of removal and therefore removed
20
the action himself on September 6, 2011. This action was given case number 1:11cv1507 SMS
21
PC.
22
On September 15, 2011, Plaintiff filed a Motion to Remand the Action. Defendants
23
Yates, Kalisher, Igbinosa, Mendoza, CDCR, Babcock, Ward, Walker and McCoy filed an
24
Opposition on September 23, 2011. Plaintiff filed his Reply on October 11, 2011.3
25
26
On October 17, 2011, the Court dismissed 1:11cv1507 SMS PC as duplicative and
ordered Defendant Kelso to file a Notice of Joinder in this action. Defendant Kelso filed his
27
3
28
Also pending before the Court are Defendants’ August 25, 2011, Motion to Screen the Complaint and
September 23, 2011, Motion for Writ of Certiorari to the Superior Court.
3
1
Notice of Joinder on October 18, 2011.
2
II.
3
Discussion
Plaintiff does not dispute that his Complaint asserts causes of action pursuant to 42
4
U.S.C. § 1983. Rather Plaintiff points to alleged procedural defects in the removal process.
5
Specifically, he argues that (1) the Notice of Removal is deficient because all documents served
6
on all Defendants were not attached; (2) all served Defendants did not consent to removal and/or
7
remove timely; and (3) Defendants waived their right to remove the action.
8
This action has an unusual procedural history. Instead of removing when the first
9
Defendants were served in November 2010, Defendants chose to litigate, to some extent, in State
10
Court. The State Court even issued a ruling on certain Defendants’ Motion for Judgment on the
11
Pleadings. With this background, and in the interests of conserving judicial resources, the Court
12
finds that additional briefing is necessary to assist in determining the remand issue.
13
The Complaint in this action names over 30 Defendants and is 95 pages in length, with an
14
additional 231 pages of exhibits. It covers a multitude of events and allegations. It is therefore
15
possible that Plaintiff’s Complaint may improperly assert unrelated claims against unrelated
16
parties. Fed. R. Civ. P. 18(a). Examining this issue will allow the Court to properly weigh the
17
remand issue.
18
ORDER
19
Therefore, Defendants are ORDERED to provide supplemental briefing on whether
20
Plaintiff’s Complaint complies with Federal Rule of Civil Procedure 18(a) within thirty (30) days
21
of the date of service of this Order. Though a reply is not necessary, Plaintiff may file a reply
22
within thirty (30) days of being served with the supplemental briefing.
23
24
IT IS SO ORDERED.
Dated:
3b142a
November 10, 2011
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
25
26
27
28
4
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
