Nicholas Honchariw v. County of Stanislaus ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICHOLAS HONCHARIW, Trustee, No. 1:21-cv-00801-DAD-SKO Honchariw Family Trust, 12 Plaintiff, 13 ORDER DENYING PLAINTIFF’S MOTION v. TO REMAND 14 COUNTY OF STANISLAUS, (Doc. No. 6) 15 Defendant. 16 17 18 This matter is before the court on plaintiff Nicholas Honchariw’s motion to remand this 19 action to the Stanislaus County Superior Court. (Doc. No. 6.) Pursuant to General Order No. 617 20 addressing the public health emergency posed by the coronavirus pandemic, on June 9, 2021, the 21 court took this matter under submission to be decided on the papers. (Doc. No. 7.) For the 22 reasons set forth below, the court will deny plaintiff’s motion to remand. 23 BACKGROUND 24 On August 25, 2017, plaintiff filed a verified petition for writ of mandate and complaint 25 for declaratory relief and damages in the Stanislaus County Superior Court (the “initial 26 complaint”) against defendant County of Stanislaus, regarding certain conditions of approval for a 27 subdivision of residential lots in the County of Stanislaus. (Doc. No. 1 at 8–16.) Plaintiff’s 28 initial complaint asserted three state law causes of action for writ of mandate under California 1 Code of Civil Procedure § 1085, declaratory relief under California Code of Civil Procedure § 2 536(a), and damages under California Government Code § 66020. (Id.) 3 After litigating in state court for over three years, plaintiff advised defendant and the 4 superior court that he intended to file a verified supplemental and amended complaint for 5 damages (the “supplemental complaint”). (Doc. Nos. 6-2 at ¶ 7; 8 at 8–16.) Unlike the initial 6 complaint, plaintiff’s supplemental complaint stated federal claims on its face.1 (Doc. Nos. 6-1 at 7 5; 8 at 8–16.) On March 16, 2021, the parties executed a stipulation agreeing: (1) to file a 8 proposed order with the Stanislaus County Superior Court allowing plaintiff to file the 9 supplemental complaint; (2) that defendant acknowledged service of the supplemental complaint; 10 (3) that defendant denied all allegations in the supplemental complaint and waived no defenses; 11 and (4) that defendant was given sixty days to file its responsive pleading to the supplemental 12 complaint (the “stipulation”). (Doc. No. 8 at 4–5.) A copy of plaintiff’s supplemental complaint 13 was also attached to the parties’ stipulation. (Id. at 8–16.) 14 In the following days and weeks, plaintiff unsuccessfully attempted to electronically file 15 the stipulation and supplemental complaint with the Stanislaus County Superior Court. (Doc. No. 16 6-2 at ¶ 9.) Finally, on April 21, 2021, the superior court entered an order upon the parties’ 17 stipulation, (Doc. No. 8 at 6), and the supplemental complaint was deemed filed two days later, 18 on April 23, 2021.2 (Doc. No. 1 at 237–245.) 19 On May 17, 2021, twenty-four days after plaintiff’s supplemental complaint was filed in 20 state court, defendant removed the action to this federal court. (Doc. No. 1.) In its notice of 21 removal, defendant asserts that removal is proper under 28 U.S.C. § 1441(a) and 28 U.S.C. § 22 23 1 Plaintiff’s supplemental complaint alleges the following state and federal claims: (1) under California Government Code § 815.6; (2) for inverse condemnation and temporary taking under 24 the Fifth and Fourteenth Amendments to the U.S. Constitution; Article I, Section 19 of the California Constitution; and 42 U.S.C. § 1983; and (3) for denial of substantive due process rights 25 under the Fifth and Fourteenth Amendments to the U.S. Constitution; Article 1, Section 7 of the California Constitution; and 42 U.S.C. § 1983. (Doc. No. 8 at 10–13.) 26 27 2 Although the superior court issued an order upon the parties’ stipulation on April 21, 2021, the superior court’s docket reflects that a “Stipulation and Order” and “Amended Complaint” were 28 both filed on April 23, 2021. (Doc. No. 1 at 257–258.) 1 1331 because this court has original jurisdiction over plaintiff’s claims arising under the United 2 States Constitution and 42 U.S.C. § 1983. (Doc. No. 1 at 3.) Defendant also contends that under 3 28 U.S.C. § 1367(a) this court may exercise supplemental jurisdiction over plaintiff’s remaining 4 state-law claims because they are part of the same case or controversy as the related federal 5 claims. (Id.) Defendant maintains that removal was timely under 28 U.S.C. § 1446(b)(3) because 6 the supplemental complaint was filed on April 23, 2021 and the notice of removal was filed 7 within thirty days thereafter, on May 17, 2021. (Id. at 4.) 8 On June 8, 2021, twenty-two days after the notice of removal was filed, plaintiff filed the 9 pending motion to remand. (Doc. No. 6.) Therein, plaintiff argues that the removal of this action 10 was untimely because the notice of removal was not filed within thirty days of the execution of 11 the parties’ stipulation, which plaintiff contends constitutes an “other paper” from which 12 defendant could first ascertain that the case was removable. (Id. at 2.) Plaintiff also contends that 13 defendant waived its right to removal when it executed the parties’ stipulation. (Id.) Plaintiff 14 does not, however, challenge defendant’s jurisdictional basis for removing the supplemental 15 complaint—only its timeliness. Plaintiff also seeks recovery of his costs and fees in bringing this 16 motion. (Id.) Defendant filed an opposition to the pending motion on July 6, 2021, arguing that 17 there were no grounds upon which to remove this action until the supplemental complaint filed in 18 state court became operative on April 23, 2021. (Doc. No. 10 at 7.) As for waiver, defendant 19 maintains that its execution of the stipulation did not manifest its intent to adjudicate the case in 20 state court and thus does constitute waiver of its right to removal. (Id. at 7-8) Plaintiff filed his 21 reply on July 12, 2021. (Doc. No. 11.) 22 LEGAL STANDARD 23 A suit filed in state court may be removed to federal court if the federal court would have 24 had original jurisdiction over the suit. 28 U.S.C. § 1441(a). Removal is proper when a case 25 originally filed in state court presents a federal question or where there is diversity of citizenship 26 among the parties and the amount in controversy exceeds $75,000. 28 U.S.C. §§ 1331, 1332(a). 27 If at any time before final judgment it appears that the district court lacks subject matter 28 jurisdiction over the removed action, “the case shall be remanded.” 28 U.S.C. § 1447(c). “The 1 removal statute is strictly construed against removal jurisdiction, and the burden of establishing 2 federal jurisdiction falls to the party invoking the statute.” Cal. ex rel. Lockyer v. Dynegy, Inc., 3 375 F.3d 831, 838 (9th Cir. 2004); see also Provincial Gov’t of Marinduque v. Placer Dome, Inc., 4 582 F.3d 1083, 1087 (9th Cir. 2009) (“The defendant bears the burden of establishing that 5 removal is proper.”). As such, a federal court must reject jurisdiction and remand the case to state 6 court if there is any doubt as to the right of removal. Matheson v. Progressive Specialty Ins. Co., 7 319 F.3d 1089, 1090 (9th Cir. 2003); see also Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1118 8 (9th Cir. 2004). 9 As to the timeliness of a removal, 28 U.S.C. § 1446(b) sets forth two separate thirty-day 10 provisions that govern the time to remove a case from state court to federal court. First, a notice 11 of removal must be filed within thirty days of defendant receiving “a copy of the initial pleading 12 setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. 13 § 1446(b)(1). Second, if the initial pleading does not indicate that the case is removable, a second 14 thirty-day deadline for removal will begin to run when defendant receives “a copy of an amended 15 pleading, motion, order or other paper from which it may first be ascertained that the case is one 16 which is or has become removable.” Id. § 1446(b)(3). The first thirty-day removal deadline set 17 forth in 28 U.S.C. § 1446(b) “is mandatory such that a timely objection to a late petition will 18 defeat removal.” Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136, 1142 n.4 (9th Cir. 19 2013). “If a notice of removal is filed after [the second] thirty-day window, it is [also] untimely 20 and remand to state court is therefore appropriate.” Babasa v. LensCrafters, Inc., 498 F.3d 972, 21 974 (9th Cir. 2007). 22 ANALYSIS 23 A. Timeliness of Defendant’s Removal 24 Here, the parties dispute whether defendant’s removal of this action was timely. There is 25 no question that defendant’s removal on May 17, 2021 was timely if the thirty-day removal clock 26 began to run when plaintiff’s supplemental complaint was filed (April 23, 2021) or when the 27 superior court entered the order pursuant to the parties’ stipulation (April 21, 2021). Plaintiff 28 does not dispute this. Instead, plaintiff contends that the removal clock under 28 U.S.C. § 1 1446(b)(3) was triggered well before either the supplemental complaint was filed, or the state 2 court entered the order on the parties’ stipulation.3 (Doc. No. 6-1 at 3.) Specifically, plaintiff 3 argues that the stipulation executed by the parties on March 16, 2021 constituted an “other paper” 4 alerting defendant to the removability of the initial complaint, thereby triggering the running of 5 the second thirty-day removal clock. (Doc. No. 11 at 2.) In short, removal of this action is 6 timely, unless as plaintiff argues, the second thirty-day removal period began to run on March 16, 7 2021 when the parties executed their stipulation. 8 In his motion to remand, plaintiff admits that “the initial complaint did not expressly state 9 federal claims,” and he does not argue that the initial complaint “was removable ‘on its face.’” 10 (Doc. No. 11 at 2–3.) Plaintiff’s main argument is that because the initial complaint was drafted 11 broadly enough to encompass federal claims, defendant could first ascertain that federal claims 12 existed when it received the supplemental complaint attached to the stipulation, thus triggering 13 the commencement of the second thirty-day removal period at that time. (Doc. No. 11 at 2.) 14 Plaintiff directs the court to specific paragraphs in the initial complaint where he contends he 15 “alleged the basic facts necessary for the federal claims” and “the elements of the federal claims.” 16 (Doc. No. 6-1 at 6.) Plaintiff maintains that these allegations—even if “they are insufficient to 17 show a federal claim ‘on its face’”—were adequate to provide a basis for proceeding with federal 18 claims under California law. (Doc. No. 11 at 3.) Thus, plaintiff contends that when the broad 19 allegations of the initial complaint were paired with the notice provided by the parties’ 20 stipulation, defendant should have ascertained that there were removable federal claims and 21 removed this action based on the initial complaint no later than March 16, 2021. (Doc. No. 6-1 at 22 6.) 23 Having considered the parties’ arguments and the relevant case law, the court finds 24 plaintiff’s arguments to be unpersuasive for several reasons. 25 ///// 26 27 3 Although plaintiff cites 28 U.S.C. § 1446(b)(1) in his motion to remand, he quotes the language from subdivision (b)(3) and has included cases interpreting the phrase “other paper” from that 28 subdivision as well. (Doc. No. 6-1 at 3–4.) 1 First, whether plaintiff’s allegations in the initial complaint would have been adequate to 2 provide a basis for a federal claim under California’s procedural law is irrelevant. Whether the 3 initial complaint could be removed based on federal question jurisdiction depends on if it satisfied 4 the well-pleaded complaint rule. See, e.g., Hansen v. Grp. Health Coop., 902 F.3d 1051, 1057 5 (9th Cir. 2018) (“Removal based on federal-question jurisdiction is reviewed under the 6 longstanding well-pleaded complaint rule.”); Caterpillar Inc. v. Williams, 482 U.S. 386, 398–399 7 (1987) (detailing “the paramount policies embodied in the well-pleaded complaint rule” including 8 “that a federal question must appear on the face of the complaint”) (emphasis added); id. at 392 9 (“[T]he ‘well-pleaded complaint rule’ [] provides that federal jurisdiction exists only when a 10 federal question is presented on the face of the plaintiff’s properly pleaded complaint.”). Here, as 11 plaintiff concedes, his initial complaint did not satisfy the well-pleaded complaint rule and thus 12 did not state a federal claim sufficient to trigger the commencement of the first thirty-day clock 13 for removal. Moreover, the court has reviewed the initial complaint and agrees that it did not 14 state federal claims that would have provided any “grounds for removal.” 28 U.S.C. § 1446(a). 15 Second, the court is not persuaded by plaintiff’s argument that the stipulation constituted 16 an “other paper” that alerted defendant to implied federal claims in plaintiff’s initial complaint 17 and triggered the running of the second thirty-day clock for removing the initial complaint. (See 18 Doc. No. 11 at 2–4.) Under the well-pleaded complaint rule, plaintiff is the master of the 19 complaint and he has the right to, “by eschewing claims based on federal law, choose to have the 20 cause heard in state court.” Caterpillar Inc., 482 U.S. at 398–399; see also Lippitt v. Raymond 21 James Fin. Servs., Inc., 340 F.3d 1033, 1037, 1040–1041 (9th Cir. 2003) (finding that even 22 though the allegations of plaintiff’s complaint were stated “in terms that track almost verbatim the 23 misdeeds proscribed by [federal] rules,” the allegations did not confer federal question 24 jurisdiction when plaintiff only sought relief under state law); Rains v. Criterion Sys., Inc., 80 25 F.3d 339, 344 (9th Cir. 1996) (“That the same facts could have been the basis for a Title VII 26 claim does not make [plaintiff’s] wrongful termination claim into a federal cause of action. 27 [Plaintiff] chose to bring a state claim rather than a Title VII claim. . . .”). Here, plaintiff 28 concedes that he did not state any federal claims on the face of his initial complaint, and it is 1 apparent from the court’s review of that initial complaint that plaintiff sought only relief under 2 state law. (Doc. Nos. 11 at 2; 1 at 13–14.) 3 In addition, assuming for the sake of argument that a document that is outside the 4 pleadings and not incorporated by reference could be considered in determining whether implied 5 federal claims had been stated in a complaint, plaintiff’s argument is still unpersuasive. An 6 “other paper” received after the initial complaint must affirmatively reveal “from the face of the 7 document” the grounds for removal. Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 694–695, 8 697 (2005) (detailing the principles supporting the court’s adoption of a “bright-line approach”). 9 The Ninth Circuit recently ruled that its “bright-line approach” means the second thirty-day clock 10 does not start until a subsequent paper makes the grounds for removal “unequivocally clear and 11 certain.” Dietrich v. Boeing Co., 14 F.4th 1089, 1090, 1094 (9th Cir. 2021) (holding that written 12 discovery responses clearly stating the grounds for removal under 28 U.S.C. § 1442(a) triggered 13 the thirty-day removal clock, while oral deposition testimony providing the same information 14 would not trigger the commencement of the removal clock until formalized into a written 15 transcript).4 16 Here, the parties’ stipulation itself does not provide any notice to defendant that the initial 17 complaint contained implied federal claims—it simply does not mention the substance of either 18 ///// 19 ///// 20 ///// 21 ///// 22 23 4 Plaintiff also suggests that defendant knew about the federal claims to be brought by him earlier than March 16, 2021 through oral conversations and by virtue of receiving the stipulation on 24 March 8, 2021. (Doc. No. 6-1 at 2, 4, 6.) These arguments are unavailing. First, the Ninth Circuit in Dietrich held that the word “paper” in “other paper,” 28 U.S.C. § 1446(b)(3), “is 25 defined as ‘[a] written or printed document or instrument,’” so oral conversations have no legal effect on triggering the commencement of the thirty-day removal clock. 14 F.4th at 1095 26 (citations omitted). Second, the fact that defendant received the stipulation eight days earlier than 27 it was executed does not affect the court’s analysis regarding how the stipulation could have potentially placed defendant on notice as to the alleged removability of plaintiff’s initial 28 complaint. 1 complaint at all.5 (See Doc. No. 8 at 4–5.) Although plaintiff’s proposed supplemental complaint 2 that was attached to the parties’ stipulation states federal claims, plaintiff fails to explain how “the 3 face of” the proposed supplemental complaint “revealed affirmatively” to defendant that it was 4 the initial complaint that included claims arising under federal law. Moreover, were the court to 5 credit plaintiff’s argument in this regard, it would run afoul of the principles enumerated by the 6 Ninth Circuit supporting its “bright-line approach,” such as “‘bring[ing] certainty and 7 predictability to the process’ of removals” and “‘avoid[ing] gamesmanship in pleading,’” among 8 others. Dietrich, 14 F.4th at 1091 (alterations in original) (quoting Harris, 425 F.3d at 697). 9 Even in instances where federal law is referenced in the initial complaint or in an attachment to 10 the complaint, that is generally insufficient to state a federal claim. See, e.g., Rains, 80 F.3d at 11 344 (finding that direct and indirect references to federal law in state law causes of action did not 12 confer federal question jurisdiction); Lippitt, 340 F.3d at 1041 (finding that references to federal 13 securities laws violations on the face of the complaint were insufficient to provide the basis for 14 removal under federal question jurisdiction); St. Mary’s Reg’l Med. Ctr. v. Renown Health, 35 F. 15 Supp. 3d 1275, 1282 (D. Nev. 2014) (finding that the plaintiff’s complaint referring to and 16 attaching an exhibit—a draft complaint by the Federal Trade Commission—alleging violations of 17 a federal antitrust statute was insufficient to state a federal claim for purposes of federal question 18 jurisdiction, even when the draft complaint was incorporated into the complaint under Rule 10(c) 19 of the Federal Rules of Civil Procedure). 20 5 Although the cases cited by plaintiff are offered for the proposition that an “other paper” could 21 reveal federal jurisdiction and the removability of an initial complaint (Doc. Nos. 6-1 at 4; 11 at 2), none of those cases involved federal question jurisdiction and the well-pleaded complaint rule. 22 For example, in Durham v. Lockheed Martin Corp. 445 F.3d 1247 (9th Cir. 2006), cited by 23 plaintiff in his motion, the court was examining removal under 28 U.S.C. § 1442(a), which allows for removal of actions brought in state court against a defendant who acted under the color of 24 federal office. In Durham the Ninth Circuit contrasted federal officer removal under 28 U.S.C. § 1442(a) with federal question removal under 28 U.S.C. § 1441, concluding that “removal rights 25 under section 1442 are much broader than those under section 1441” and that “removals under section 1441 are subject to the well-pleaded complaint rule, while those under section 1442 are 26 not.” 445 F.3d at 1253; see also Babasa, 498 F.3d at 975 (finding that a letter sent in advance of 27 mediation that showed the amount in controversy was over $5 million provided sufficient notice that the case was removable under the Class Action Fairness Act). Accordingly, the court finds 28 these cases inapposite. 1 Third, and finally, the stipulation had no legal effect on the removability of this action 2 until the superior court entered an order on the parties’ stipulation. See Sullivan v. Conway, 157 3 F.3d 1092, 1094 (7th Cir. 1998) (holding that an amended complaint raising federal claims for the 4 first time only becomes removable and triggers the second removal clock when the state court 5 grants a motion to amend, not when the motion to amend is first made)6; cf. Reyes v. Dollar Tree 6 Stores, Inc., 781 F.3d 1185, 1188–1190 (9th. Cir. 2015) (citing Sullivan, 157 F.3d at 1094) 7 (finding that the second removal clock was only triggered in a Class Action Fairness Act removal 8 when the state court entered the class certification order necessarily increasing damages to more 9 than $5 million, noting that “[t]he tentative ruling had no jurisdictional effect precisely because it 10 was tentative”). Under the majority view articulated in Sullivan, new federal claims stated in an 11 amended complaint do not trigger the second thirty-day removal clock until the state court grants 12 leave to amend. Sullivan, 157 F.3d at 1094 (“The statutory language that we quoted [in 28 U.S.C. 13 § 1446(b)] speaks of a motion or other paper that discloses that the case is or has become 14 removable, not that it may sometime in the future become removable if something happens, in 15 this case the granting of a motion by the state judge.”). Here, leave to amend the initial complaint 16 occurred, at the earliest, on April 21, 2021, when the superior court entered an order upon the 17 parties’ stipulation. (Doc. No. 8 at 6.) Before that time, there were no federal claims stated on 18 the face of any operative complaint that could have provided a basis for removal of this action to 19 federal court. See Lion Raisins, Inc., 788 F. Supp. 2d at 1174 (quoting Caterpillar Inc., 482 U.S. 20 at 392) (“‘[F]ederal jurisdiction exists only when a federal question is presented on the face of the 21 plaintiff’s properly pleaded complaint,’ not based upon what an amended pleading may present in 22 the future.”); Brewer, 2017 WL 3635824, at *1 (citation omitted) (“Simply put, in federal court, 23 24 6 The Ninth Circuit has not addressed if an amended pleading stating federal claims triggers the second removal clock before leave to amend has been granted. But the Seventh Circuit’s decision 25 in Sullivan is considered the “majority view” in federal courts and has been widely adopted in district courts across California, including this one. See, e.g., Lion Raisins, Inc. v. Fanucchi, 788 26 F. Supp. 2d 1167, 1172–1173 (E.D. Cal. 2011) (adopting the “majority view” in Sullivan); 27 Brewer v. Hatton, No. 17-cv-02900-JSC, 2017 WL 3635824, at *2 (N.D. Cal. Aug. 24, 2017) (same); Lucente S.P.A. v. Apik Jewelry, Inc., No. 07-cv-04005-MMM-RZ, 2007 WL 7209938, at 28 *4 (C.D. Cal. Oct. 3, 2007) (same). Thus, this court finds Sullivan’s reasoning persuasive. 1 there is simply no such thing as ‘contingent’ subject matter jurisdiction.”). 2 Therefore, the court finds that defendant’s notice of removal was timely because it was 3 filed on May 17, 2021, twenty-six days after the Stanislaus County Superior Court entered the 4 order allowing plaintiff to file his supplemental complaint, which added federal claims and thus 5 provided the grounds for removal based on federal question jurisdiction. 6 B. Waiver 7 The parties also dispute whether defendant waived its right to removal when it executed 8 the stipulation. (Doc. Nos. 6-1, at 7; 10, at 17.) A defendant “may waive the right to remove to 9 federal court where, after it is apparent that the case is removable, the defendant takes actions in 10 state court that manifest his or her intent to have the matter adjudicated there, and to abandon his 11 or her right to a federal forum.” Resolution Trust Corp. v. Bayside Developers, 43 F.3d 1230, 12 1240 (9th Cir. 1994). Defendant’s waiver “must be clear and unequivocal.” Id. Generally, “the 13 right of removal is not lost by action in the state court short of proceeding to an adjudication on 14 the merits.” Kenny v. Wal-Mart Stores, Inc., 881 F.3d 786, 790 (9th Cir. 2018) (citing Resolution 15 Trust Corp., 43 F.3d at 1240) (finding that defendant’s act of filing a demurrer but removing 16 shortly after the filing, before an opposition was filed, a hearing was held, or a ruling was issued, 17 showed that defendant did not waive right to remove). 18 Plaintiff argues that when defendant signed the parties’ stipulation, it agreed to treat the 19 supplemental complaint as “live” by stipulating to its filing, accepting its service, extending its 20 responsive pleading deadline, and denying its allegations. (Doc. Nos. 6-1 at 7; 11 at 4.) In its 21 opposition to the pending motion to remand, defendant contends its agreement to the stipulation 22 was merely a “professional courtesy” and did not advance the case towards an adjudication on the 23 merits in state court. (Doc. No. 10 at 18.) 24 The court is not persuaded by plaintiff’s arguments and finds that defendant did not waive 25 its right to remove this matter to federal court for several reasons. 26 First, plaintiff relies on the decision in Chicago Title & Trust Co. v. Whitney Stores, Inc., 27 583 F. Supp. 575, 577 (N.D. Ill. 1984), but that case is not analogous to this one. In Chicago 28 Title & Trust Co., the defendant sought and obtained a continuance of a trial set to begin in two 1 weeks without informing plaintiff or the state court that defendant intended to remove the case in 2 the interim continuance period. Id. at 576. The court found that defendant had breached the 3 “prompt notification requirement” regarding the availability of removal arising when trial was 4 imminent. Id. at 577. Here, by contrast, trial was not imminent in state court and the “prompt 5 notification requirement” was not implicated. 6 Second, when examining the parties’ stipulation itself, there is nothing “clear and 7 unequivocal” in it that addresses removal or defendant’s intent to waive its right to remove the 8 action to federal court. (Doc. No. 8 at 4–5.) As with the lack of notice regarding federal claims 9 impliedly raised in the initial complaint, the stipulation is simply silent on the topic of removal. 10 (Id.) 11 Third, the stipulation was signed by defendant on March 16, 2021 (Doc. No. 8), but this 12 case did not become removable, at the very earliest, until April 21, 2021 when the superior court 13 entered an order allowing plaintiff’s filing of the supplemental complaint. Defendant cannot 14 waive the right to remove before “it is apparent that the case is removable” in the first place. 15 Resolution Trust Corp., 43 F.3d at 1240; see also Koch v. Medici Ermete & Figli S.R.L., No. 13- 16 cv-1411 CAS-PJW, 2013 WL 1898544, at *2 (C.D. Cal. May 6, 2013) (“In all such 17 circumstances, the first requirement is that ‘it must be unequivocally apparent that the case is 18 removable.’”) (quoting 10 James W. Moore, et al., Moore’s Federal Practice, § 107.18[3][a]). 19 Fourth, and finally, the matters addressed in the parties’ stipulation—agreeing to the filing 20 of the supplemental complaint, accepting its service, extending its responsive pleading deadline, 21 and denying its allegations—were non-substantive procedural issues. (Doc. No. 8 at 4–5.) It is 22 well established that the filing of a responsive pleading, which typically deny all allegations in the 23 complaint, does not constitute waiver of removal. Acosta v. Direct Merchants Bank, 207 F. Supp. 24 2d 1129, 1131 (S.D. Cal. 2002). It follows that seeking an extension to file a responsive pleading 25 also does not constitute a removal waiver. Harara v. Landamerica Fin. Grp., Inc., No. 07-cv- 26 03999-WHA, 2007 WL 2938172 at *4 (N.D. Cal. Oct. 9, 2007) (“If an action is still removable 27 after an answer is filed, logic dictates that merely asking for an extension of time to answer could 28 not be considered a waiver of removal.”). Moreover, stipulating to allow plaintiff to file an 1 | amended pleading and accepting service of that pleading are more akin to activities found by 2 | courts not to constitute waiver than to those that have been found to establish waiver of removal. 3 | Compare Flam vy. Flam, No. 1:12-cv-1052-AWI-DLB, 2016 WL 829163, at *4 (E.D. Cal. Mar. 3, 4 | 2016) (“The filing of an answer or a responsive pleading, and engaging in limited discovery (such 5 | as participating in limited depositions), are actions that do not constitute waiver.”’) (citations 6 || omitted) and Foley vy. Allied Interstate, Inc., 312 F. Supp. 2d 1279, 1284-1285 (C.D. Cal. 2004) 7 | (holding that “filing an answer, serving form interrogatories and requesting a time extension to 8 | respond to discovery” did not constitute waiver) with Acosta, 207 F. Supp. 2d 1132-1133 9 | (finding waiver where defendant filed a non-compulsory counterclaim and cross-complaint) and 10 | Capretto v. Stryker Corp., No. 07-cv-03390-WHA, 2007 WL 2462138, at *3 (N.D. Cal. Aug. 29, 11 } 2007) (finding waiver where defendant attempted to remove the action after filing motion for 12 || summary judgment and state court held hearing on motion). 13 Accordingly, the court finds that none of the matters agreed to in the stipulation advanced 14 | the litigation in state court toward deciding or resolving the case on the merits. Thus, its 15 | execution did not constitute waiver of defendant’s right to remove this action. C. Plaintiff’s Request for Attorneys’ Fees 17 Because defendant’s notice of removal was timely and defendant did not waive its right to 18 | removal, plaintiff is not entitled to recover costs or attorneys’ fees under 28 U.S.C. § 1447(c). 19 CONCLUSION 20 For the reasons set forth above, plaintiff's motion for remand (Doc. No. 6) is denied. 21 | IT IS □□ ORDERED. me □ Dated: _ November 17, 2021 a aL, A a anys 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28 12