Li v. Mummah ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 TIANQING LI, Case No. 22-cv-07626-NC 11 Plaintiff, ORDER TO SHOW CAUSE 12 REGARDING REMOVAL v. 13 Re: ECF 1 PHILLIP MUMMAH, 14 Defendant. 15 16 Cross-Defendant Scott A. Flaxman removed this case to federal Court on December 17 3, 2022. This removal is substantively improper because a cross-defendant may not 18 remove to federal court, nor may a party select only part of an action to remove. The 19 removal is also untimely and does not include copies of all “process, pleadings, and 20 orders” served upon him in the action as required by 28 U.S.C. § 1446(a). Accordingly, 21 Mr. Flaxman is ORDERED to show cause why this case should not be remanded to state 22 court. 23 A. REMOVAL BY A CROSS-DEFENDANT 24 In Home Depot, U.S.A. v. Jackson, 139 S. Ct. 1743, 1745 (2019), the United States 25 Supreme Court concluded that the general removal statute in 28 U.S.C. § 1441 does not 26 allow a third-party defendant to remove to federal court. Mr. Flaxman is a cross-defendant 27 who may not remove under Jackson. 1 Even assuming he could remove as a cross-defendant, 28 U.S.C. § 1446 permits the 2 removal of an entire “action,” not just a selected cross-claim. 3 B. 28 U.S.C. § 1446 REQUIREMENTS 4 Pursuant to 28 U.S.C. § 1446(a), Mr. Flaxman must file along with his Notice of 5 Removal “process, pleadings, and orders” served upon him in the action. He has not done 6 so here. 7 Pursuant to 28 U.S.C. § 1446(b)(1) “The notice of removal of a civil action or 8 proceeding shall be filed within 30 days after the receipt by the defendant, through service 9 or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which 10 such action or proceeding is based, or within 30 days after the service of summons upon 11 the defendant if such initial pleading has then been filed in court and is not required to be 12 served on the defendant, whichever period is shorter.” 13 According to the notice of removal, “Plaintiff in the above referenced case filed her 14 lawsuit on December 22, 2020. Scott A. Flaxman, the ostensible cross-defendant, is the 15 Plaintiff’s attorney. On Friday, October 28, 2022, (Two Thousand Twenty Two) nearly 16 two years after Plaintiff filed her Complaint and almost two months after (allegedly) 17 electronically lodging the cross complaint based on the Fair Debt Collections Practices Act 18 with the clerk of the court, and while the case was still formally referred to Mediation, 19 Defendant’s Cross Complaint was hand delivered by some unknown and yet unidentified 20 party to a general reception desk at Scott Flaxman’s office…” ECF 1 at 3. 21 The Court understands this to mean that the clock in 28 U.S.C. § 1446(b)(1) began 22 to run, at the latest, on October 28, 2022. Accordingly, the removal more than 30 days 23 later on December 3, 2022 is untimely. 24 C. CONCLUSION 25 For the reasons stated above, Mr. Flaxman is ORDERED to show cause why this 26 case should not be remanded to state court by December 23, 2022. If he does not, the 27 Court may remand at that time. 1 || expenses, including attorney fees, incurred as a result of the removal. 28 U.S.C. § 1447(a). 2 3 IT IS SO ORDERED. 4 5 || Dated: December 9, 2022 —<———~_ _ NATHANAEL M. COUSINS 6 United States Magistrate Judge 7 8 9 10 11 12 13 614 15 16 & 17 19 20 21 22 23 24 25 26 27 28