Morgan v. Hobbs ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMIE MORGAN, No. 2:22-cv-01941-KJM-JDP 12 Plaintiff, ORDER 13 v. JACYLN HOBBS, VICTORIA STAEBLER, 15 | NATALIE DAVEY, SAMATHA SAECHO, MARISA SANDOVAL, DULCE OLIVARES, 16 | VANESSA SEGOVIA-OVIEDO, JOANNA MORENO, JANELLE, SCHUSTER, 17 | MICHELLE CALLEJAS, SACRAMENTO 18 DEPARTMENT OF CHILD, FAMILY, AND ADULT SERVICES, BETHANY 19 | PETERSON, H.O.P.E. THERAPEUTIC SERVICES, SAMUEL T. ROUNSEVILLE, 20 | KATHLEEN L. ROUNSEVILLE, AND DOES 31 1 through 24, inclusive, Defendants. 22 23 Defendant Bethany Peterson moves to dismiss plaintiff Jamie Morgan’s sixth cause of 24 | action for therapeutic negligence to the extent pled against her. Because this entire action was 25 | improperly removed to federal court, the court cannot rule on the motion and instead remands to 26 | the Sacramento County Superior Court. 27 This action was originally filed in the Sacramento County Superior Court. In October 28 | 2022, defendants County of Sacramento, Jaclyn Hobbs, Victoria Staebler, Natalie Davey, 1 Samantha Saecho, Marisa Sandoval, Dulce Olivares, Vanessa Segovia-Oviedo, Michelle Callejas, 2 Joanna Moreno and Janelle Schuster removed the action under 28 U.S.C. § 1441(a), invoking 3 federal question jurisdiction under 28 U.S.C. § 1331. See Notice of Removal at 1–2, ECF No. 1.1 4 A defendant may generally remove a case from state court to the federal district court 5 embracing the same location if that district court has original subject matter jurisdiction over the 6 case. 28 U.S.C. § 1441(a). However, jurisdiction “must be rejected if there is any doubt as to the 7 right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) 8 (citation omitted). After all, there is a strong presumption against removal and courts are to 9 “strictly construe the removal statute against removal jurisdiction.” Id. (citing Boggs v. Lewis, 10 863 F.2d 662, 663 (9th Cir. 1988)); Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403 (9th 11 Cir. 1996). 12 For removal in civil actions, 28 U.S.C. § 1446 requires unanimous consent from all 13 properly served defendants. See 28 U.S.C. § 1446(b)(2)(A) (“[A]ll defendants who have been 14 properly joined and served must join in or consent to the removal of the action.”); Hewitt v. City 15 of Stanton, 798 F.2d 1230, 1232 (9th Cir. 1986). Here, defendants did not join Bethany Peterson, 16 H.O.P.E Therapeutic Services, Samuel T. Rounseville and Kathleen L. Rounseville in their 17 petition for removal. See generally Notice of Removal. Although defendants state “the docket is 18 silent as to service made against any defendant,” this representation is contradicted by the prior 19 paragraph noting the date of service. Id. at 2. Moreover, defendants’ attached exhibits specify 20 service of summons were filed. See Notice of Removal, Ex. A–D, ECF No. 1. On this record, it 21 is at most ambiguous whether the other defendants were served. It is defendants’ burden to show 22 removal was proper here, and they did not do so. See Luther v. Countrywide Home Loans 23 Servicing LP, 533 F.3d 1031, 1034 (9th Cir. 2008) (“A defendant seeking removal has the burden 24 to establish that removal is proper and any doubt is resolved against removability.”). Thus, the 25 court finds defendants did not meet the unanimity requirement for removal jurisdiction under 1 When citing page numbers on filings, the court uses the pagination automatically generated by the CM/ECF system. 1 | 28U.S.C. § 1441(a) and accordingly finds removal improper. The court remands the action to 2 | Sacramento County Superior Court and dismisses the motion to dismiss as moot. 3 This order resolves ECF No. 6. 4 IT IS SO ORDERED. 5 DATED: February 14, 2023. (] 6 AS Wal X ¢ , CHIEF NT] ED STATES DISTRICT JUDGE