Opinion
3:22-CV-00772-YY
08-30-2022
TORIANDRE T. GIVENS, Plaintiff, v. DELORISE LAWSON, JOHNNY LAWSON, DEPARTMENT OF HUMAN SERVICE ALBERTA BRANCH, PATRIC STRICTLAND, KENYA WILLIAMS, ALICIA REYNOLDS, Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You, United States Magistrate Judge
FINDINGS
Defendants Department of Human Services, Patrick Strickland, Kendra Williams, and Alicia Reynolds removed this case from Multnomah County Circuit Court on May 27, 2022. ECF 1. Plaintiff then filed the current motion to remand the case back to state court. ECF 4. Because plaintiff's initial complaint, filed in September of 2021, plainly alleged over a dozen claims specifically citing numerous federal constitutional amendments, defendants' removal was untimely and plaintiff's motion to remand should be granted.
I. Background
Plaintiff, proceeding pro se at the time, initiated the present suit in Multnomah County Circuit Court by filing a complaint on September 10, 2021. Post Decl., Ex. 1 at 1, ECF 5. In the complaint, plaintiff alleged violations of state and federal law including violations of the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution. Id. at 17, 19-20.
Defendants filed a motion to make more definite and certain in November of 2021, which was granted on March 8, 2022. Post Decl., Ex. 2 at 1, Ex. 3 at 1, ECF 5. Plaintiff, now represented by counsel, filed a First Amended Complaint on May 2, 2022. Notice of Removal, Ex. 1 at 17, ECF 1-1. The First Amended Complaint asserted a claim under 42 U.S.C. § 1983 against defendants Strickland, Reynolds, and Williams alleging they were “deliberately indifferent to a known risk of constitutional deprivation” to plaintiff. Id. ¶¶ 65-71.
On May 27, 2022, defendants Department of Human Services, Patrick Strickland, Kendra Williams, and Alicia Reynolds removed the case to federal court. Id. at 1-2. Plaintiff now seeks to remand the case back to state court on the grounds that plaintiff's initial pro se complaint filed in September of 2021 included claims that could have been removed on the basis of federal question jurisdiction, and thus the 30-day time limit for removal lapsed long before the case was removed. Mot. Remand 3, ECF 4.
II. Discussion
“[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 USC § 1441. There is a strong presumption against removal. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The removing party bears the burden of overcoming the presumption against a federal court's exercise of jurisdiction: “It is to be presumed that a cause lies outside [the federal court's] limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Corral v. Select Portfolio Servicing, Inc., 878 F.3d, 770, 773 (9th Cir. 2017) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). “This burden is particularly stringent for removing defendants because ‘[t]he removal statute is strictly construed, and any doubt about the right of removal requires resolution in favor of remand.' ” Id. at 773-74 (quotingMoore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009)).
There are two pathways to removal, and each one is governed by a thirty-day deadline.
28 U.S.C. § 1446(b); Dietrich v. Boeing Co., 14 F.4th 1089, 1090 (9th Cir. 2021). The first and most common pathway is where the basis for removal is clear from the complaint or other initial pleading. Id. In those cases, the thirty-day removal period begins “to run from the date a defendant receives the initial pleading.” Dietrich, 14 F.4th at 1090 (citing 28 U.S.C. § 1446(b)(1)). The second pathway opens “if the case stated by the initial pleading is not removable,” but the defendant later receives an “amended pleading, motion, order, or other paper” that makes it clear that the case “is or has become removable.” 28 U.S.C. § 1446(b)(3); Deitrich, 14 F.4th at 1090.
The first pathway is the relevant one here. Plaintiff's initial pro se complaint made numerous specific references to and asserted several claims under federal law including:
• Defendants deprived plaintiff of rights “secured by federal and state law[.]” Post Decl., Ex. 1 at 5.
• Defendant's “failure to act deprived Plaintiff Givens of his liberty in violation of the due process [clause] of [the] 14[th] Amendment.” Id. at 13.
• “Plaintiff Givens . . . had a Substantive Due Process right to be free [from] harm of the defendants. The defendants fail[e]d to protect the plaintiff (14th Amend)[.]” Id. at 17.
• “Plaintiff Givens claims the 14th Amend[ment's] Substantive due process clause protects a foster child['s] interest in social worker supervision and protection from harm inflicted by a foster parent[.]” Id.
Plaintiff also asserted another page and a half of federal claims, twelve in all, under the First, Fifth, Eighth and Fourteenth Amendments, along with several other state law claims. Id. at 1920.
The basis for federal question jurisdiction on plaintiff's initial complaint is clear. See 28 U.S.C § 1331 (providing that federal district courts “shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States”). Defendants' attempt to remove this case in May of 2022 is far outside the thirty-day opportunity to remove that began to run when defendants received plaintiff's initial pleading. 28 U.S.C. § 1446(b)(1). Although the exact time defendants received the first complaint is unclear from the record, defendants were at least on notice of the grounds for removal on November 5, 2021, when they filed a motion to make more definite and certain in Multnomah County Circuit Court. Post Decl., Ex. 2 at 1, 5, ECF 5. In that motion, defendants noted that “Plaintiff alleges that Defendants DHS, Reynolds, Strickland and Williams failed to take action and such failure violated Plaintiff's constitutional rights and numerous Oregon statutes.” Id. at 2. Defendants also asserted that plaintiff had not pleaded “ultimate facts” to support his claims,” and used as an example plaintiff's allegation that “Defendants violated Amendment VIII cruel and unusual punishment by punishing plaintiff in retaliation for filing complaints.” Id. at 3. Thus, defendants were on notice and indeed recognized that plaintiff was asserting numerous federal constitutional claims as earlier as November 2021, and therefore failed to seek removal in the time allowed under 28 U.S.C. § 1446(b)(1).
Defendants insist that plaintiff's first amended complaint was the first document that “clearly and unequivocally” stated a federal claim for relief and that the initial pro se complaint was “indefinite and ambiguous in many respects.” Resp. 2, ECF 7. To support this argument, defendants rely on a recent Ninth Circuit decision that adopted an “unequivocally clear and certain” standard for removal based on the second pathway under 28 U.S.C. § 1446(b)(3). Resp. 3, ECF 7 (citing Dietrich, 14 F.4th at 1091). That case is inapposite for several reasons. First, Dietrich's “unequivocally clear and certain” standard only applies to the second pathway under section 1446(b)(3). 14 F.4th at 1093 (“As discussed above, § 1446(b) lays out two pathways for removal. Dietrich's initial complaint does not set forth a ground for removal, so the first pathway does not apply. Thus, the question we must answer on appeal is at what point the removal clock began under the second pathway.”). The basis for removal here was clear from plaintiff's initial pleading, meaning the timeline for removal in this case is governed by the first pathway, section 1446(b)(1). Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005) (“[T]he first thirty-day requirement is triggered by defendant's receipt of an ‘initial pleading' that reveals a basis for removal.”).
Dietrich correctly recognized the distinction between the two pathways for removal and the different standards that dictate when the removal clock begins to countdown for each one: “While § 1446(b)(1) requires only a pleading that ‘set[s] forth' a ground for removal to start the removal clock under the first pathway, § 1446(b)(3)'s second pathway requires an amended pleading, motion, order, or other paper from which a ground for removal may be ‘ascertained.' ” 14 F.4th at 1093 . The court then explained that the second path's use of “ascertain” suggested “a greater level of certainty or that the facts supporting removability be stated unequivocally.” Id. (quoting Bosky v. Kroger Tex., LP, 288 F.3d 208, 211 (5th Cir. 2002)) (emphasis omitted). Thus, defendants are incorrect that Dietrich established a higher “unequivocally clear and certain” standard for evaluating the timeline for removability in every instance. See Resp. 3, ECF 7. Dietrich and its progeny only apply to cases where the initial pleading does not “set forth” a basis for federal jurisdiction. The present case is not one of those.
Finally, the “vagueness” or “ambiguity” of plaintiff's factual allegations in the initial pleading does not vitiate the obvious federal character of the claims plaintiff asserted in the first complaint. Dozler v. City of St. Helens, No. CIV. 08-1127-HA, 2009 WL 152509, at *3 (D. Or. Jan. 21, 2009) “[W]hen a plaintiff specifically and intentionally raises a federal question on the face of the complaint, the action is removable regardless of the vagueness of the allegations.”) (quoting Scott v. Greiner, 858 F.Supp. 607, 609-10 (S.D.W.Va. 1994)) (emphasis in original); see also Reeves v. Leasure, No. 21-CV-00325-CRB, 2021 WL 942578, at *3 (N.D. Cal. Mar. 12, 2021) (“Courts have specified that even if a complaint is vague in its allegations, the action is removable if it raises a direct federal question.”). As detailed above, plaintiff asserted at least a dozen claims specifically referencing federal law. Accordingly, defendants had thirty days to remove the case upon being served with the initial complaint. That time having long passed, the removal is untimely, and remand is required.
RECOMMENDATIONS
Plaintiff's Motion to Remand (ECF 4) should be granted because defendants failed to remove the case within thirty days of receiving plaintiff's initial complaint, which was filed in September of 2021 and set forth numerous federal constitutional claims.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Tuesday, September 13, 2022. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.