Ewing v. Layton et al, No. 3:2014cv02951 - Document 23 (S.D. Cal. 2015)
Court Description: ORDER denying Plaintiff's 4 Motion to Remand to State Court. Signed by Judge Cynthia Bashant on 3/11/2015. (All non-registered users served via U.S. Mail Service) (jah)
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Ewing v. Layton et al Doc. 23 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 Plaintiffs, 14 15 16 17 Case No. 14-cv-02951-BAS(MDD) ANTON EWING, v. ORDER DENYING PLAINTIFF’S MOTION FOR REMAND (ECF No. 4) FARRELL K. LAYTON, ET AL., Defendants. 18 19 20 21 Plaintiff Anton Ewing (“Plaintiff”) commenced this action in San Diego 22 Superior Court on November 6, 2014 against Defendants Farrell K. Layton, Tracy 23 Dishno, Stacee Botsford, Kaitlin Koehne, Shelley J. Zimmerman, San Diego Police 24 Department, City of San Diego, County of San Diego, William D. Gore, and San 25 Diego County Sheriff’s Department alleging Defendants violated his constitutional 26 and statutory rights under both state and federal law. (ECF No. 1-2.) Defendant 27 Tracy Dishno removed this matter to this Court on December 15, 2014 pursuant to 28 28 U.S.C. §§ 1331, 1441(a) and (c). (ECF No. 1.) Plaintiff now moves to remand –1– 14-cv-02951 Dockets.Justia.com 1 this action to State court. (ECF No. 4.) 2 The Court finds this motion suitable for determination on the papers submitted 3 and without oral argument. See Civ. L.R. 7.1(d)(1). For the following reasons, the 4 Court DENIES Plaintiff’s motion to remand (ECF No. 4). 5 I. BACKGROUND 6 Plaintiff commenced this action on November 6, 2014 in San Diego Superior 7 Court. (ECF No. 1-2 (“Compl.”).) Plaintiff alleges that “[o]n August 25, 2014, the 8 San Diego Police Department and San Diego County Sheriff’s Department, by and 9 through its agents and officers, maliciously, intentionally and knowingly engaged in 10 a false arrest, false imprisonment and battery of Plaintiff by handcuffing him against 11 his will and forcing him into an extremely hot, locked San Diego Police Department 12 police car for over 6 hours without food, water, bathroom break or a telephone call.” 13 (Id. at p. 2.) He further alleges the “San Diego Police Department and its agents 14 engaged in threats and extortion attempts to get Plaintiff to talk,” and “the conditions 15 inside the Sheriff’s Department holding cells was extreme, outrageous and unfit for 16 human habitation.” (Id.) Plaintiff was released approximately 30 hours after he paid 17 bail. (Id.) 18 Plaintiff filed this civil rights action under 42 U.S.C. §1983 alleging (1) 19 Defendants City of San Diego, San Diego Police Department, Layton, Dishno, 20 Botsford, Koehne, and Zimmerman violated his Fourth Amendment right “to be free 21 from arrest without probable cause” (id. at pp. 22-26); (2) Defendants County of San 22 Diego and William D. Gore violated the Fourth Amendment when he “was 23 subjected to an extended period of pretrial detention without a prompt judicial 24 determination of probable cause to believe that he committed a crime” (id. at p. 26); 25 (3) municipal liability against County of San Diego and William D. Gore for having 26 de facto unconstitutional policies, including the “routine failure[] to take pretrial 27 detainees to be arraigned within 48 hours of their detention” (id. at pp. 27-28); (4) 28 Defendants City of San Diego, San Diego Police Department, and Zimmerman –2– 14-cv-02951 1 violated his Fourth Amendment right when they brought “media representatives or 2 other third parties into [his] home during the execution of [his] arrest” (id. at pp. 28- 3 29); (5) Defendants City of San Diego, San Diego Police Department and 4 Zimmerman failed to maintain adequate and proper training for police officers (id. at 5 pp. 29-31); and (6) Defendants City of San Diego, San Diego Police Department and 6 Zimmerman, as a matter of custom, practice, and policy, failed to supervise and 7 discipline police officers “to prevent, deter and punish wrongful arrests and 8 detentions” (id. at pp. 29-31). 9 Plaintiff also brings state law causes of action for false imprisonment (id. at 10 pp. 32-34), intentional infliction of emotional distress (id. at pp. 34-35), negligent 11 infliction of emotional distress (id. at pp. 35-36); negligence (id. at pp. 36-37); and 12 violation of California Civil Code § 52.1 (id. at pp. 37-43) relating to the events 13 surrounding his August 25, 2014 arrest. Plaintiff also alleges, in the alternative, that 14 California Penal Code section 128 is unconstitutional. (Id. at p. 39.) 15 II. 16 LEGAL STANDARD “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life 17 Ins. Co. of Am., 511 U.S. 375, 377 (1994). 18 authorized by Constitution and statute, which is not to be expanded by judicial 19 decree.” Id. (internal citations omitted). “It is to be presumed that a cause lies 20 outside this limited jurisdiction, and the burden of establishing the contrary rests 21 upon the party asserting jurisdiction.” Id. (internal citations omitted); see also 22 Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006). “They possess only that power 23 Consistent with the limited jurisdiction of federal courts, the removal statute is 24 strictly construed against removal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 25 566 (9th Cir. 1992); see also Sygenta Crop Prot. v. Henson, 537 U.S. 28, 32 (2002); 26 O’Halloran v. Univ. of Wash., 856 F.2d 1375, 1380 (9th Cir. 1988). “The ‘strong 27 presumption’ against removal jurisdiction means that the defendant always has the 28 burden of establishing that removal is proper.” Gaus, 980 F.2d at 566 (citations –3– 14-cv-02951 1 omitted); see also Nishimoto v. Federman-Bachrach & Assoc., 903 F.2d 709, 712 2 n.3 (9th Cir. 1990); O’Halloran, 856 F.2d at 1380. 3 Any civil action “of which the district courts of the United States have 4 original jurisdiction” may be removed to district court. 28 U.S.C. § 1441(a). Under 5 28 U.S.C. § 1446(b), a defendant must file a notice of removal within 30 days after 6 being served with a complaint alleging a basis for removal. 28 U.S.C. § 1446(b); 7 Quality Loan Serv. Corp. v. 24702 Pallas Way, Mission Viejo, CA 92691, 635 F.3d 8 1128, 1132 (9th Cir. 2011). Each defendant has 30 days after service of the initial 9 pleading to file a notice of removal. 28 U.S.C. § 1446(b)(2)(B); Destfino v. Reiswig, 10 630 F.3d 952, 956 (9th Cir. 2011). “If defendants are served at different times, and a 11 later-served defendant files a notice of removal, any earlier-served defendant may 12 consent to the removal even though that earlier-served defendant did not previously 13 initiate or consent to removal.” 28 U.S.C. § 1446(b)(2)(C). 14 When there are multiple defendants, all defendants named in the complaint 15 who have been properly served in the action must also join in or consent to the 16 removal. 28 U.S.C. § 1446(b)(2)(A); Hewitt v. City of Stanton, 798 F.2d 1230, 1232 17 (9th Cir. 1986). “One defendant’s timely removal notice containing an averment of 18 the other defendants’ consent and signed by an attorney of record is sufficient.” 19 Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1225 (9th Cir. 2009). 20 A motion to remand must be made within 30 days after the filing of the Notice 21 of Removal. 28 U.S.C. § 1447(c). Remand may be ordered either for lack of 22 subject matter jurisdiction or for any defect in removal procedure. Id. 23 III. DISCUSSION 24 Plaintiff does not dispute that the Court has original jurisdiction over his 25 Section 1983 civil rights claims and may exercise supplemental jurisdiction over his 26 related state law claims. See 28 U.S.C. §§ 1343(a)(3) & 1367(a); Acri v. Varian 27 Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). Rather, Plaintiff seeks to remand 28 this action because of claimed procedural deficiencies in Defendant Dishno’s Notice –4– 14-cv-02951 1 of Removal. 2 Plaintiff seeks to remand this matter on the following grounds: (1) the Notice 3 of Removal was untimely as more than thirty days passed between the date the 4 served Defendants knew about the lawsuit and the date of removal; (2) Plaintiff 5 claims three of the Defendants – City of San Diego, William D. Gore, and San 6 Diego County Sheriff’s Department – had not been served with the state court 7 summons at the time of removal, thus Defendant Dishno had not obtained the 8 consent of all defendants in order to properly effect removal; (3) additional 9 defendants will be named in the future and they have not consented to removal; and 10 (4) Defendant Dishno failed to attach “a copy of all process, pleadings, and orders 11 served upon such defendant or defendants” in the State court action pursuant to 28 12 U.S.C. § 1446(a). (ECF No. 4 at p. 3.) 13 A. 14 Defendant Dishno, an officer with the San Diego Police Department, was 15 formally served with a copy of the Summons and Complaint on December 4, 2014 16 by personal service on Sergeant Jose Chavez. (ECF No. 4 (“Mot”) at p. 4; ECF No. 17 14 (“Opp.”) at Ex. 2; ECF No. 1-2 at 49 (“Proof of Personal Service”).) Her Notice 18 of Removal was filed on December 15, 2014. (ECF No. 1.) Timeliness of Defendant Dishno’s Notice of Removal 19 Plaintiff claims Defendant Dishno received a copy of the Complaint earlier 20 than December 4, 2014, when he emailed a draft copy of the Complaint to the City’s 21 Community Relations Officer on September 4, 2014 and when he sent a copy of the 22 filed Complaint to “the person in charge of the case for the City of San Diego” on 23 November 6, 2014, thus triggering the removal period earlier. 24 However, “actual notice of the action is insufficient; rather, the defendant must be 25 ‘notified of the action, and brought under a court’s authority, by formal process,’ 26 before the removal period begins to run.” Quality Loan Serv. Corp., 635 F.3d at 27 1132 (quoting Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 28 (1999)). Defendant Dishno filed her Notice of Removal within 30 days of being –5– (Mot at p. 4.) 14-cv-02951 1 formally served. Accordingly, Defendant Dishno’s Notice of Removal was timely. 2 B. 3 A notice of removal shall include “a copy of all process, pleadings, and orders 4 served upon such defendant or defendants” in the State court action. 28 U.S.C. § 5 1446. Plaintiff contends that Defendant Dishno failed to attach discovery pleadings. 6 (Mot. at pp. 6-7.) However, discovery does not constitute process, pleadings, or 7 orders. Visicorp v. Software Arts, Inc., 575 F.Supp. 1528, 1531 (N.D. Cal. 1983), 8 abrogated on other grounds by Stewart Org. v. Ricoh Corp., 487 U.S. 22 (1988). 9 Therefore, Defendant Dishno was not required to include the documents with her 10 Attaching Copies of Process and Pleading Notice of Removal. 11 C. 12 Only those defendants who have been properly served must join in or consent 13 to the removal of the action. 28 U.S.C. § 1446(b)(2)(A); Destfino, 630 F.3d at 956- 14 57. As of the date of removal, Defendants City of San Diego, County of San Diego, 15 William D. Gore, and the San Diego County Sheriff’s Department had not yet been 16 served. (See ECF No. 1-2 at 49 (“Proof of Personal Service”); Mot at p. 3; Opp. at 17 p. 4.) Accordingly, those Defendants, and any defendants yet to be named, were not 18 required to consent or join in the removal. 19 IV. 20 21 22 Joinder or Consent of All Defendants CONCLUSION & ORDER For the foregoing reasons, the Court DENIES Plaintiff’s motion to remand (ECF No. 4). IT IS SO ORDERED. 23 24 DATED: March 11, 2015 25 26 27 28 –6– 14-cv-02951
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