# Ray Butler v. Avis Rent A Car System Inc.

> District Court, C.D. California · November 23, 2020

URL: https://www.frixlaw.com/law-library/cases/10039570

## Case

- **Court:** District Court, C.D. California
- **Decided:** November 23, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10039570

## Opinion text

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. 2:20-cv-08825-RGK-PLA Date November 23, 2020
Title Ray Butler v. Avis Rent A Car System Inc., et al.
□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ eee
Present: The R. GARY KLAUSNER, UNITED STATES DISTRICT JUDGE
Honorable
Joseph Remigio (not present) Not Reported N/A
Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiff: Attorneys Present for Defendants:
Not Present Not Present
Proceedings: (IN CHAMBERS) Order Re: Plaintiff's Motion to Remand [DE 11]
I. INTRODUCTION
On June 25, 2020, Ray Butler (“Plaintiff”) filed a Complaint against Avis Rent a Car System,
Inc., (“Avis”) and Steven Brown (“Brown”) (collectively, “Defendants”) alleging: (1) motor vehicle
negligence and (2) general negligence. Plaintiffs claims arise from an auto collision between Plaintiff
and Brown. On September 25, 2020, the United States of America (“the Government”) filed a Notice of
Removal pursuant to 28 U.S.C. § 2679(d)(2) on the grounds that Brown was acting in his capacity as an
employee of the United States during the collision.
Presently before the Court is Plaintiff’s Motion to Remand. For the following reasons, the Court
DENIES Plaintiff's Motion.
Il. FACTUAL BACKGROUND
In July of 2018, Plaintiff was injured in an auto collision with Brown, who was driving a vehicle
he rented from Avis. On June 25, 2020, Plaintiff filed this action in state court.
On September 25, 2020, the Government removed the case to federal court. In its Notice of
Removal, the Government certified that Brown was acting within the course and scope of his
employment with the United States. The Government did not, however, state whether Avis or Brown
had joined in its Notice of Removal. But on October 14, 2020, the Government filed a Notice of
Association of Counsel, stating that Avis would be represented in the matter. ECF No. 8.
Ii. JUDICIAL STANDARD
After a defendant files a notice of removal, a plaintiff may file a motion to remand the case back
to state court due to procedural defects in the removal or because the court lacks subject matter
jurisdiction. 28 U.S.C. § 1447. Generally, “[a] notice of removal of a civil action or proceeding shall be
CV-90 (06/04) CIVIL MINUTES - GENERAL Page of 3

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. 2:20-cv-08825-RGK-PLA Date November 23, 2020
Title Ray Butler v. Avis Rent A Car System Inc., et al.

filed within 30 days after the receipt by the defendant . . .” of the initial pleading. 28 U.S.C. 1446(b)(1).
And “[w]hen a civil action is removed solely under section 1441(a), all defendants who have been
properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. §
1446(b)(2)(A).
Under the Federal Torts Claims Act (“FTCA”), any civil action involving a defendant employee
who was “acting within the scope of his office or employment” with the United States Government at
the time of the incident out of which the claim arose must be removed to the district court in which the
action is pending. 28 U.S.C. § 2679(d)(2). Additionally, the United States is substituted as a party. Jd.
Removal is proper once the Attorney General certifies that the employee was acting within the scope of
his or her employment with the United States. Jd. This certification “conclusively establish[es] scope of
office or employment for purposes of removal.” Jd.
IV. DISCUSSION
Plaintiff argues that the case should be remanded because the Government’s removal failed to
comply with the procedural requirements of 28 U.S.C. § 1446, and the parties are not diverse for
purposes of diversity jurisdiction. The Government contends that Plaintiffs claims fall under the FTCA,
and therefore does not require diversity of citizenship. Nor must the Government comply with the
removal procedures under 28 U.S.C. § 1446 because 28 U.S.C. § 2679 governs. The Court agrees with
the Government.
When the Government removes an action under the FTCA and the Attorney General certifies
that a defendant employee was acting within the scope of his or her employment with the United States,
“exclusive competence to adjudicate the case resides in the federal court, and that court may not remand
the suit to the state court.” Osborn v. Haley, 549 U.S. 225, 231 (2007).
Here, the Government certified that Brown was acting within the scope of his employment with
the United States during the accident with Plaintiff. (Notice of Removal, ECF. No 1., Exh. 3). This
certificate conclusively established Brown’s scope of employment for purposes of removal under 28
U.S.C. § 2679(d)(2). Consequently, “the litigation is thereafter governed by the Federal Tort Claims
Act[.]” Osborn, 549 U.S. at 230. Thus, there is no need for diversity of citizenship, and the Court “may
not remand the suit to state court.” Osborn, 549 U.S. at 231.
Even if the Court had the authority to remand to state court for procedural defects, the procedural
defects Plaintiff pomts to—failure to obtain consent of the other defendants and timely removal—do not
require remand. Courts have held that these procedural defects do not relieve federal courts of
jurisdiction in FTCA cases. For example, a district court found that the same procedural defects cited in
Plaintiff's Motion—failure to timely remove and join parties—did not warrant remand to state court.
CV-90 (06/04) CIVIL MINUTES - GENERAL Page of 3

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. 2:20-cv-08825-RGK-PLA Date November 23, 2020
Title Ray Butler v. Avis Rent A Car System Inc., et al.

Thrasher v. Lips, No. 07-141-RET-DLD, 2007 WL 9706679, at *2 (M.D. La. July 30, 2007). In
addition, other courts have analyzed the statutory language of § 1446(b)(2)(A) and concluded that
“when Congress expressed that the consent requirement shall apply to civil actions ‘removed solely
under section 1441(a)’ it sought to include only those categories of cases where removal was authorized
by § 1441(a) and exclude cases where removal was authorized by other removal statutes.” Penson
Financial Services. v. Golden Summit Investors, No. 3:12-CV-300-B, 2012 WL 2680667, at *5 (N.D.
Tex. July 5, 2012), As an example of when § 1446(b)(2)(A) would not apply, the court cited to 28
U.S.C. § 2679(d). Id.: see also Ogeone v. United States, CV No. 13-00166-SOM-RLP, 2013 WL
3807798, at *5 (holding that the procedure for timely notice of removal was governed by FTCA and not
28 U.S.C. § 1446(b)).
The Court finds the reasoning of these courts persuasive. Since FTCA applies, procedural defects
under 28 U.S.C. § 1446—like obtaining the consent of all the other defendants and timing—do not
relieve the Court of jurisdiction, and the Government need only follow FTCA procedural requirements.
Under FTCA, any civil action “shall be removed without bond at any time before trial... .” 28 U.S.C. §
2679(d)(2). The statute also does not require the consent of other defendants. As there has been no trial,
the timing of removal was proper. Accordingly, remand is not warranted.

V. CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff's Motion.

IT IS SO ORDERED.

Initials of Preparer jre

CV-90 (06/04) CIVIL MINUTES - GENERAL Page of 3

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10039570. Public record. Not legal advice.