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Case 1:13-cv-01521-LJO-SKO Document 15 Filed 11/26/13 Page 1 of 5





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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

VESTER PATTERSON,


Plaintiff,



v.


MATTHEW CATE, et al.,


Defendants.


_____________________________________/


Case No. 1:13-cv-01521-LJO-SKO PC

ORDER DENYING PLAINTIFF?S MOTION
TO REMAND

(Doc. 7)

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I.

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Background

This civil action, which arises out of prison conditions of confinement, was removed from

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Kings County Superior Court by Defendant R. Diaz (“Defendant”) on September 19, 2013.1 28

U.S.C. § 1441(a). On October 3, 2013, Plaintiff Vester Patterson (“Plaintiff”), a state prisoner

proceeding pro se, filed a motion to remand on the ground that Defendant failed to file a timely

notice of removal. 28 U.S.C. § 1446(b)(1). Defendant filed an opposition on October 17, 2013,

Plaintiff filed a reply on November 1, 2013, and the motion has been submitted upon the record

without oral argument. Local Rule 230(l).


1 Plaintiff names Matthew Cate, Jeffery Beard, and Ralph M. Diaz as defendants in his second amended complaint.
The notice of removal was filed by Defendant Diaz. The status of Cate and Beard is unclear. As discussed in section
II(B), Plaintiff?s assertion that he completed service of process on Cate and Beard by virtue of mailing them a copy of
the summons and complaint lacks merit, as neither defendant signed an acknowledgement of receipt. Cal. Civ. Proc.
Code § 415.30(c); Robinson v. Adams, No. 1:08-cv-01380-AWI-GSA PC, 2009 WL 652209, at *1 (E.D. Cal. Mar. 12,
2009) (citing Thierfeldt v. Marin Hosp. Dist., 35 Cal.App.3d 186, 199, 110 Cal.Rptr. 791 (Cal. Ct. App. 1973)).




Case 1:13-cv-01521-LJO-SKO Document 15 Filed 11/26/13 Page 2 of 5





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II.

Discussion

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A.

Jurisdiction

Under 28 U.S.C. ' 1441(a), a defendant may remove from state court any action “of which

the district courts of the United States have original jurisdiction.” Federal courts “shall have

original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the

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United States.” 28 U.S.C. ' 1331. The removal statute is strictly construed, and Defendant bears

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the burden of establishing grounds for removal. Syngenta Crop Protection, Inc. v. Henson, 537

U.S. 28, 32, 123 S.Ct. 366 (2002); Provincial Government of Marinduque v. Placer Dome, Inc.,

582 F.3d 1083, 1087 (9th Cir. 2009). As a threshold matter, courts “must consider whether federal

jurisdiction exists, even if no objection is made to removal, and even if both parties stipulate to

federal jurisdiction,” Rains v. Criterion Systems, Inc., 80 F.3d 339, 342 (9th Cir. 1996) (citations

omitted), and “federal jurisdiction „must be rejected if there is any doubt as to the right of removal

in the first instance,?” Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996) (quoting Gaus v.

Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).



“The presence or absence of federal-question jurisdiction is governed by the well-pleaded

complaint rule, which provides that federal jurisdiction exists only when a federal question is

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presented on the face of the plaintiff=s properly pleaded complaint.” Caterpillar, Inc., v. Williams,

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482 U.S. 386, 392, 107 S.Ct. 2425 (1987) (internal quotations and citations omitted). “The rule

makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive

reliance on state law.” Caterpillar, Inc., 482 U.S. at 392.

In this instance, Plaintiff?s second amended complaint specifically pleads claims for relief

under 42 U.S.C. § 1983 and 42 U.S.C. § 2000cc-1 (Religious Land Use and Institutionalized

Persons Act of 2000). Therefore, the Court has subject matter jurisdiction over this action.

B.

Timely Notice of Removal

Turning to Plaintiff?s motion to remand, Plaintiff argues that Defendant failed to file a

timely notice of removal. 28 U.S.C. § 1446(b)(1). Section 1446 provides, in relevant part:


The notice of removal of a civil action or proceeding shall be filed within 30 days
after the receipt by the defendants, through service or otherwise, of a copy of the
initial pleading, setting forth the claim relief upon which such action or proceeding



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is based, or within 30 days after the service of summons upon the defendant if such
initial pleading has then been filed in court and is not required to be served on the
defendant, whichever period is shorter.



“„A named defendant?s time to remove is triggered by simultaneous service of the

summons and complaint, or receipt of the complaint, „through service or otherwise, after and apart

from service of the summons, but not by mere receipt of the complaint unattended by any formal

service.?” Quality Loan Serv. Corp. v. 24702 Pallas Way, Mission Viejo, CA 92691, 635 F.3d

1128, 2232-33 (9th Cir. 2011) (quoting Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S.

344, 347-48, 119 S.Ct. 1322 (1999)). “Actual notice of the action is insufficient; rather, the

defendant must be „notified of the action, and brought under a court?s authority by formal

process,? before the removal period begins to run.” Quality Loan Serv. Corp., 635 F.3d at 1133

(quoting Murphy Bros., 526 U.S. at 347) (emphasis added).



Plaintiff?s evidence of notice is an opposition filed by the Attorney General?s Office on

April 15, 2013, and a proof of service for an order issued by the Kings County Superior Court,

dated July 5, 2013. However, neither document demonstrates that Defendant Diaz had been

brought within the superior court?s authority by formal process. First, Plaintiff?s evidence that

service occurred more than thirty days prior to removal pertains to Cate and Beard. “[E]ach

defendant is entitled to thirty days to exercise his removal rights after being served,” Destfino v.

Reiswig, 630 F.3d 952, 956 (9th Cir. 2011), and in this case, Plaintiff has not shown that

Defendant Diaz failed to file his notice of removal within thirty days. To the contrary, Defendant

submitted evidence that he was served on or around August 20, 2013, making his notice timely.2,3


2 Defendant does not challenge the validity of service, but the Court notes that substitute service was purportedly
effected by a Kings County Sheriff?s Deputy on or around August 20, 2013. Substitute service is not effective until
ten days after the serving party has mailed a copy of the summons and complaint to the served party at the place
where the complaint and summons were left. Cal. Civ. Proc. Code § 415.20(b) (“Service of a summons in this
[substitute] manner is deemed complete on the 10th day after the mailing.”); see also Billings v. Edwards, 91 Cal.
App. 3d 826, 830 (1979) (“Copies of the summons and complaint were not mailed until October 5, 1977. Since, under
the last sentence of section 415.20, service was not „complete? until ten days after mailing, service was not effected
until October 15, 1977. . . .”). At best and assuming substitute service was in fact completed, service would not have
been deemed complete until ten days after August 20, 2013, and Defendant had thirty days from that date within
which to file his notice of removal.

3 Use of “on or about” in this context is unnecessary and therefore disfavored. The letter provided by Defendant was
supported originally by evidence of service, but the Sheriff?s “trip ticket” was not provided to the Court. (Opp., p.
19.) Reference to the trip ticket would allow for the identification of the date of substitute service. However,
Defendant was not responsible for drafting the letter and Plaintiff has not provided any evidence controverting August
20, 2013, as the date of service by the Kings County Sheriff?s Deputy. Furthermore, as discussed in footnote 2,



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Second, the Attorney General?s Office made a special appearance on behalf of Cate and

Beard on April 15, 2013, for the limited purpose of arguing that Plaintiff was not entitled to entry

of default judgment and judgment against them, because he had not properly effected service of

process and the court lacked jurisdiction over them. This special appearance did not constitute a

general appearance on behalf of Cate and Beard. Serrano v. Stefan Merli Plastering Co., Inc., 162

Cal.App.4th 1014, 1028-29, 76 Cal.Rptr.3d 559 (Cal. Ct. App. 2008). The subsequently issued

proof of service is of no assistance to Plaintiff, either, as it recognized the special appearance

designation and it is merely a proof of service.

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In reply to Defendant?s brief opposition to the motion to remand, in which Defendant

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states that Plaintiff offers no compelling evidence of any procedural defects, Plaintiff reiterates the

arguments already addressed and argues additionally that he served Cate, Beard, and the Attorney

General?s Office. (Opp., 3:8-9; Reply, pp. 2-4.) However, Plaintiff did not succeed in effecting

service on Cate and Beard by merely mailing them the service packet. Plaintiff concedes that Cate

and Beard did not sign and return acknowledgments, and in the absence of a signed, returned

acknowledgement, service was not effected. Cal. Civ. Proc. Code § 415.30(c); Robinson, 2009

WL 652209, at *1 (citing Thierfeldt, 35 Cal.App.3d at 199). Furthermore, this is not an action

against the State, Cal. Gov?t Code § 955.4, and notwithstanding that fact, service on the Attorney

General?s Office, where authorized or required, nonetheless requires compliance with the rules

governing service, e.g., Cal. Civ. Proc. Code § 415.30(c).

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In the absence of any evidence to the contrary, Defendant Diaz was served on or around

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August 20, 2013, and his notice of removal was timely filed within thirty days of that date.

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Plaintiff is not entitled to remand.

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service is deemed completed ten days after the date of mailing of a copy of the summons and complaint to the place of
substitute service. Cal. Civ. Proc. Code § 415.20(b).



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III. Conclusion and Order

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In conclusion, Plaintiff has not demonstrated that he is entitled to remand based on

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Defendant Diaz?s failure to file a notice of removal within thirty days, and Plaintiff?s motion to

remand is HEREBY ORDERED DENIED.


IT IS SO ORDERED.

Dated: November 25, 2013




/s/ Lawrence J. O’Neill
UNITED STATES DISTRICT JUDGE





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