Opinion
24-cv-01133-NC
02-26-2024
ROSARIO HERRERA, Plaintiff, v. COUNTY OF SAN BENITO, Defendant.
ORDER TO SHOW CAUSE RE: REMOVAL RE: ECF 1
NATHANAEL M. COUSINS, United States Magistrate Judge
Plaintiff Rosario Herrera filed suit against Defendant County of San Benito in state court. Herrera's first amended complaint (“FAC”) alleged several causes of action, including claims under 42 U.S.C. § 1983. Herrera purportedly served Defendant with the FAC on or about January 18, 2024. Thirty-six days later, on February 23, 2024, Defendant removed the case to federal court. ECF 1. Plaintiff removed the case based on the presence of a federal question. Id. ¶ 9.
However, Defendant's removal appears untimely under 28 U.S.C. § 1446(b). “Untimeliness of removal is, of course, a waivable defect.” McGuire v. California, No. 09-cv-5918-VRW (PR), 2011 WL 97736, at *1 (N.D. Cal. Jan. 12, 2011). Indeed, Defendant avers that Plaintiff “has consented to removal so long as the procedural aspects were met.” ECF 1 ¶ 10 (emphasis added). This latter phrase gives the Court pause as it appears Defendant did not satisfy the procedural requirement of filing a timely notice of removal. 28 U.S.C. § 1446(b). Accordingly, the Court ORDERS the parties to file a joint statement addressing the issue of Herrera's waiver. This statement must be filed by March 1, 2024.
IT IS SO ORDERED.