Summary
holding that a co-defendant's answer filed four days after thirty day removal period did not satisfy unanimity requirement
Summary of this case from Push Pedal Pull, Inc. v. CaspersonOpinion
No C 01-3934 VRW
January 30, 2002
ORDER
Plaintiff moves to remand pursuant to 28 U.S.C. § 1447. Doc #11. Plaintiff also requests costs and attorney's fees. For the reasons set forth below, plaintiff's motion to remand and request for costs and fees (Doc #11) is GRANTED.
On August 30, 2001, plaintiff filed an action in Alameda county superior court alleging sexual harassment, constructive wrongful discharge in violation of public policy, breach of contract and intentional infliction of emotional distress. See Compl (Doc #1, Exh A). On September 28, 2001, defendant Safeway Stores, Inc (Safeway) was served. See Doc #1, Exh C. On October 15, 2001, defendant The Vons Companies, Inc (Vons) was served. See Doc #11, ¶ 2. On October 18, 2001, Safeway removed the case to this court, claiming that plaintiff's complaint presented a federal question under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. See Rem Not (Doc #1). On November 2, 2001, Vons and Safeway filed their answer to the complaint (Doc #9) and on November 21, 2001, Vons filed its notice of joinder in Safeway's removal (Doc #16).
Plaintiff argues that Safeway's notice of removal is defective because Vons did not properly join and Safeway failed to explain affirmatively the absence of Vons in the removal notice. Safeway contends that it did not include Vons in its notice of removal because it did not know that Vons had been served at the time the notice was filed. Additionally, Safeway and Vons claim that Vons consented to removal by filing an answer and a notice of joinder in Safeway's removal.
Any civil action brought in state court may be removed to federal court by a defendant when federal courts have original jurisdiction over the matter. 28 U.S.C. § 1441. In the Ninth Circuit, section 1441 is construed strictly against removal jurisdiction. Libhart v. Santa Monica Dairy Co, 592 F.2d 1062, 1064 (9th Cir 1979). A plaintiff may seek to remand the matter to state court under 28 U.S.C. § 1447 for lack of federal jurisdiction or if the notice of removal is procedurally defective. In response to such a motion, the party that invoked federal jurisdiction has the burden of establishing the propriety of removal.Gaus v. Miles, Inc, 980 F.2d 564, 566 (9th Cir 1992).
"Section 1446 requires all proper defendants to join or consent to the removal notice." Prize Frize, Inc v. Matrix (US) Inc, 167 F.3d 1261, 1266 (9th Cir 1999). "Where fewer than all the defendants have joined in a removal action, the removing party has the burden under section 1446(a) to explain affirmatively the absence of any co-defendants in the notice for removal." Id. Specifically, "the notice of removal should expressly indicate why one or more defendants have not joined in the removal notice." Id. (quoting 16 James Wm Moore et al, Moore's Federal Practice § 107.11(1)(d) (Matthew Bender 3d ed 14 1997)).
Safeway explained the absence of the individual co-defendants in its removal notice, noting that they had not yet been served. The removal notice, however, failed to explain the absence of Vons. Safeway contends that it was not aware that Vons had been served at the time the removal notice was filed. A procedural defect in a removal notice, however, is not cured by an allegation by the removing party that it was unaware of procedural requirements.
Moreover, Safeway could have cured the defect in its removal notice if Vons had filed a notice of joinder within 30 days of removal, pursuant to section 1446(b). In some situations, filing an answer to a complaint within 30 days of removal may serve as a joinder and thereby cure the procedural defect. See e.g., Hernandez v. Six Flags Magic Mountain, Inc, 688 F. Supp. 560 (CD Cal 1988) (noting that a party "arguably satisfie[s] the thirty day requirement in the statute when it answer[s] the federal complaint within the thirty day period"). Vons, however, did not answer plaintiff's complaint until November 2, 2001, which was four days after the 30 day statutory period expired. Further, Vons did not file a notice of joinder in Safeway's removal until November 21, 2001, well past the 30 day statutory period. As they were untimely, neither of these efforts cured the procedurally defective removal notice.
Safeway and Vons cite Parrino v. FHP, Inc, 146 F.3d 699 (9th Cir 1998), and Caterpillar, Inc v. Lewis, 519 U.S. 61 (1996), for the proposition that a procedural defect in invoking subject matter jurisdiction does not warrant remand as long as the defect is cured before entry of judgment. In Parrino, however, the court interpretedCaterpillar to hold that an appellate court need not reverse and remand a decision to state court if a procedural defect in the removal notice was cured prior to entry of final judgment in the district court. Id. at 703. The Parrino court did not hold that a district court may simply choose not to remand when a procedurally defective removal is properly challenged by a motion for remand. See id. Rather, the court specifically stated, "[w]e do not * * * read Caterpillar to authorize district courts to ignore the procedural requirements for removal * * *." Id. at nl.
Parrino and Caterpillar are inapposite. "Accordingly, because the removal notice was facially defective and the deficiencies uncured within the thirty-day statutory period, removal was improper." Prize Frize, 167 F.3d at 1267.
Plaintiff requests costs and attorney's fees incurred in filing the motion to remand. "An order remanding the case may require payment of just costs and any actual expenses, including attorney's fees, incurred as a result of the removal." 28 U.S.C. § 1447 (c). "Congress has unambiguously left the award of fees to the discretion of the district court." Moore v. Permanente Medical Group, Inc, 981 F.2d 443, 448 (9th Cir 1992). The purpose of such an award is not to punish defendants but rather to reimburse plaintiffs for unnecessary litigation costs inflicted by defendants. See Moore v. Kaiser Foundation Hospitals, Inc, 765 F. Supp. 1464, 1466 (ND Cal 1991).
Because the removal notice was defective due to Safeway's failure to monitor adequately the status of the litigation, the court determines that costs and fees incurred in filing the remand motion should be awarded.
Counsel for plaintiff states that she worked on the motion to remand for more than fifteen hours. See Doc #12. She also states that her hourly billing rate is $225 per hour. See Doc #12. This would result in attorney's fees in the amount of $3,375.00. Counsel, however, is only requesting attorney's fees in the amount of $1,800.00, which corresponds to 8 hours. Doc #11. The court determines that this request is reasonable. Plaintiff is also entitled to costs incurred in filing the remand motion.
Accordingly, plaintiff's motion to remand and request for costs and attorney's fees in the amount of $1,800.00 (Doc #11) is GRANTED. The court finds this matter appropriate for disposition without oral argument. See Civ. LR 7-1(b). The hearing scheduled for January 31, 2002, is vacated. The clerk is directed to close the file, terminate all pending motions and transfer the matter to Alameda county superior court.
IT IS SO ORDERED.