Raul Sotelo v. Browning-Ferris Industries of California, Inc.

UNITED STATES DISTRICT COURT JS-6

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No.: 2:20-cv-06927-SB-PVC Date: 11/30/2020

Title: Raul Sotelo v. Browning-Ferris Industries of California, Inc., et al

Present: The Honorable STANLEY BLUMENFELD, JR., U.S. District Judge

Victor Cruz N/A

Deputy Clerk Court Reporter

Attorney(s) Present for Plaintiff(s): Attorney(s) Present for Defendant(s):

None Appearing None Appearing

Proceedings: [In Chambers] ORDER REMANDING CASE TO STATE

COURT (DKT. NO. 14)

Plaintiff Raul Sotelo filed a motion to remand. Dkt. 14 (Mot.). Defendants

Browning-Ferris Industries California, Inc.; Republic Services, Inc.; Consolidated

Disposal Service, LLC; and Philip Piste filed an opposition. Dkt. No. 16 (Opp.).

And Plaintiff filed a reply. Dkt. No. 18.

I. BACKGROUND

This is case involves an employee’s multiple state-law claims against his

employer. Plaintiff was an employee of Browning-Ferris Industries California,

Inc., Republic Services, Inc., and Consolidated Disposal Service, LLC (the

Corporate Defendants), and Defendant Philip Piste was Plaintiff's manager. See

Dkt. 3-1 at 22-24 (Compl. Jf 3-10).

CV-90 (12/02) CIVIL MINUTES — GENERAL Initials of Deputy Clerk VPC

On June 24, 2020, Plaintiff filed a complaint in state court against

Defendants. See Compl. 1-19. The complaint raised several different state-law

claims, including discrimination based on association, failure to prevent

discrimination and harassment, harassment, retaliation, wrongful termination,

failure to pay wages, failure to give meal breaks, failure to provide timely

employment records, and intentional infliction of emotional distress. Id. at 9-19.

On July 31, 2020, the Corporate Defendants filed a notice of removal. Dkt.

No. 1. They removed the case on federal question grounds, stating that Plaintiff’s

claims “require interpretation of a collective bargaining agreement” and thus are

“completely preempted” by the federal Labor Management Relations Act. Id. ¶ 10.

The notice did not indicate that Piste had consented to removal. See id. at ¶¶ 1-7.

On August 21, 2020, the Corporate Defendants filed an answer to the complaint.

Dkt. No. 11.

On August 28, 2020, Plaintiff filed a motion to remand, contending that

removal was procedurally improper and that there was no federal question

jurisdiction. Dkt. No. 14.

On September 8, 2020, Piste filed a joinder, consenting to the Corporate

Defendants’ notice of removal to federal court. Dkt. No. 15. That same day, all

Defendants filed an opposition to the motion to remand. Dkt. No. 16.

On September 14, 2020, Plaintiff filed a reply. Dkt. No. 18.

On September 15, 2020, Piste filed an answer to the complaint. Dkt. No. 19.

II. REQUESTS FOR JUDICIAL NOTICE

Defendants request judicial notice of multiple documents. First, they request

judicial notice of the original complaint, filed on June 24, 2020 in Los Angeles

Superior Court, in the case Raul Sotelo v. Browning Industries of California. See

Dkt. No. 3-1. “Court orders and filings are proper subjects of judicial notice” when

they arise from related proceedings. Vasserman v. Henry Mayo Newhall Mem’l

Hosp., 65 F. Supp. 3d 932, 942-43 (C.D. Cal. 2014) Accordingly, this Court

GRANTS the unopposed request for judicial notice of this document, but not for

the truth of facts stated therein that are subject to reasonable dispute.

Second, Defendants request judicial notice of two collective bargaining

agreements between Browning-Ferris Industries of California, Inc. and

International Union of Operating Engineers Local Union No. 12. Dkt. Nos. 3-2, 17.

The Court determines that it is “unnecessary to take judicial notice” of these

documents “to resolve the issues” presented by the motion to remand. Haltman v.

Aura Sys., Inc., 844 F. Supp. 544, 550 (C.D. Cal. 1993). Thus, the Court DENIES

Defendants’ request for judicial notice of these materials.

III. LEGAL ANALYSIS

Plaintiff offers three independent grounds for removal: (1) one of the

defendants, Piste, did not consent to or join in the notice of removal and the time to

do so has expired, (2) Defendants failed to provide the appropriate collective

bargaining agreement in support of their notice of removal, and (3) the action does

not present a federal question because all the claims arise from state law and do not

require analysis of the governing collective bargaining agreement. Mot. 7.

The Court agrees that removal was improper because there the notice of

removal was deficient and not timely cured. This alone justifies remand. See Lopez

v. Michael Weinig, Inc., No. CV 20-6012 PA (JEMX), 2020 WL 4192260, at *4

(C.D. Cal. July 17, 2020) (remanding action to state court due to deficient notice of

removal and untimely attempt to cure).

A. The Notice Of Removal Was Deficient.

“A suit filed in state court may be removed to federal court if the federal

court would have had original jurisdiction over the suit.” Id. (citing 28 U.S.C. §

1441(a)). “The removal statute is strictly construed against removal jurisdiction,

and the burden of establishing federal jurisdiction falls to the party invoking the

statute.” California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir.

2004). “The defendant also has the burden of showing that it has complied with the

procedural requirements for removal.” Riggs v. Plaid Pantries, Inc., 233 F. Supp.

2d 1260, 1264 (D. Or. 2001).

One procedural requirement for removal in a multi-defendant action is the

so-called unanimity rule: “all defendants who have been properly joined and

served must join in or consent to the removal of the action.” 28 U.S.C.A. §

1446(b)(2)(A). Typically, only “nominal, unknown, or fraudulently joined parties”

need not consent to the removal. United Computer Sys., Inc. v. AT&T Corp., 298

F.3d 756, 762 (9th Cir. 2002). “The exception for ‘unknown’ parties includes a

party that has not been served at the time of removal.” Beltran v. Monterey Cty.,

No. C 08-05194 JW, 2009 WL 585880, at *2 (N.D. Cal. Mar. 6, 2009).

“Where fewer than all the defendants have joined in a removal action, the

removing party has the burden under section 1446(a) to explain affirmatively the

absence of any co-defendants in the notice for removal.” Prize Frize Inc. v. Matrix

(U.S.) Inc., 167 F.3d 1261, 1266 (9th Cir. 1999) superseded by statute, on other

grounds, as recognized in Abrego v. Dow Chem. Co., 443 F.3d 676, 681 (9th Cir.

2006).

Here, the notice of removal violates the unanimity rule. Though it lists Piste

as a defendant, the notice states that “Defendants Browning-Ferris Industries of

California, Inc., Republic Services, Inc., and Consolidated Disposal Service, LLC”

remove the action from state to federal court. Dkt. No. 1 at 1-2. The notice does

not indicate that Piste has “consented or joined.” Lopez, 2020 WL 4192260, at *2.

Nor does the notice “include a sufficient explanation for the absence of a joinder

by Non-Removing Defendant, or any reason why [his] joinder was not necessary.”

Id. This falls short of the requirements for removal.

In response, Defendants note that only properly served defendants must

consent to a removal and argue that Piste’s service was deficient under California

law. Opp. 3. Though Plaintiff provides a proof of service indicating Piste was

personally served on July 6, 2020 at 9:40 a.m., Nguyen Decl. Ex. A, Defendants

offer a declaration from Piste saying “the process server never personally served

him, and instead continually knocked on Piste’s door at 10:00 p.m., and then left

documents at the front door, without confirming Piste’s identity or residence.”

Opp. 3-4 (citing Dkt. No. 16-2 (Piste Decl.) ¶ 2). Defendants say this declaration

shows Piste was never “properly served” and thus his “consent was not required

for a proper removal.” Opp. 4.1

1 Defendants also contend that Plaintiff knows Piste was not properly served

because Plaintiff has not yet sought a default judgment against Piste. Opp. 4. This

contention is based on speculation—and questionable speculation at best. Prior to

the issue being raised, Plaintiff would have had no reason to question a proof of

personal service backed by a sworn declaration from a process server. Nguyen

Decl. Ex. A. And failure to seek a default judgment in federal court says nothing.

There are other reasons not to pursue this remedy, particularly when a party is

challenging federal jurisdiction. See Giraudo v. Henkels & McCoy, No. CIV. 93-

548-FR, 1993 WL 302354, at *2 (D. Or. July 28, 1993) (seeking default in federal

court waives challenges to procedural defects in removal petition). Defendants’

speculation is no better than conjecture that they did not move to quash service

But this appears to be the first time Defendants have challenged the

sufficiency of Piste’s service. Notably, Defendants do not raise this issue to

challenge this Court’s jurisdiction over Piste; rather, they seek only to avoid

remand. Challenges to service are waived unless timely and properly raised. Fed.

R. Civ. P. 12(h); Wright & Miller, 5B Fed. Prac. & Proc. Civ. § 1353 (3d ed.) (“A

Rule 12(b)(5) motion is the proper vehicle for challenging the mode of delivery or

the lack of delivery of the summons and complaint.”). Here, there was no motion

to dismiss or quash service. An opposition to a motion to remand is not the

appropriate place to challenge service. See id. Absent a timely and formal

challenge to service, the Court will presume the statutorily compliant proof of

service was proper and will not adjudicate the issue in the context of a remand

motion. Floveyor Internat., Ltd. v. Superior Court, 69 Cal. Rptr. 2d 457, 461

(1997) (“The filing of a proof of service creates a rebuttable presumption that the

service was proper.”).

The notice of removal was deficient for another reason. Removal is only

proper when the removing defendants “explain affirmatively the absence of any

co-defendants in the notice of removal.” Prize Frize, 167 F.3d at 1266 (emphasis

added). This requires an explanation for the absence of co-defendants who have

not been served. Riggs, 233 F. Supp. 2d at 1268 (noting Prize Frize’s explanation

requirement “applies to all co-defendants, even those who are exempted from

joinder because they were not served or were fraudulently joined”); accord 14C

Joan E. Steinman, Fed. Prac. & Proc. Juris. § 3733 (Rev. 4th ed.) (“[I]f unserved

defendants have not joined the notice of removal, the removing defendants should

explain their absence from that paper, in the removal notice.”). Absent such an

explanation, the notice is deficient on its face. See, e.g., Vargas v. Riley, No. 18-

CV-00567-JST, 2018 WL 2267731, at *2-4 (N.D. Cal. May 17, 2018).

In Vargas, a plaintiff moved to remand to state court because the notice of

removal failed to comply with the unanimity rule. The removing defendant

opposed remand, arguing there were no other properly served defendants at the

time of removal. Id. at *3. According to the opposition, the process server’s

declaration that he personally served the other defendant at a particular address

was “not possible” because that defendant had permanently left that address. Id.

because they knew Piste was personally served—as opposed to other strategic

reasons.

Even so, the court remanded the case because the notice of removal did “not

mention” that defendant at all. Id. Questions about the effectiveness of service did

not relieve the removing defendant of “its burden ‘to explain affirmatively the

absence of any co-defendants in the notice of removal.’” Id. (quoting Prize Frize,

167 F.3d at 1266).

Similarly, the notice of removal here does not explain Piste’s absence. Other

than listing him in the case title, there is no reference to Piste at all. See Dkt. No. 1.

Even assuming Piste had a challenge to the sufficiency of service, the Corporate

Defendants still bore a duty to explain his absence in the notice of removal, which

they failed to do. An explanation of Piste’s absence in the opposition to motion to

remand comes too late. See, e.g., Vargas, 2018 WL 2267731 at *3 n.3 (rejecting

explanation filed in opposition to motion filed more than thirty days after service

of complaint); Garcia-Pardini v. Metro. Life Ins. Co., No. C-01-0088 VRW, 2001

WL 590037, at *2 (N.D. Cal. May 17, 2001) (rejecting explanation filed in

opposition to remand motion despite raising “serious questions” about service).

Thus, the notice of removal was “facially defective” and “removal was

improper.” Prize Frize, 167 F.3d at 1266.

B. Piste’s Belated Joinder Is Not A Cure.

Defendants further argue that any defect in the removal procedure is

overcome by Piste’s consent to join the removal on September 8, 2020. Opp. 4. In

support, they quote Destfino v. Reiswig, 630 F.3d 952, 957 (9th Cir. 2011) for the

proposition that “a district court may allow the removing defendants to cure the

defect by obtaining joinder of all defendants prior to the entry of a judgment.” Id.

Destfino does not establish such a broad rule. As one court explained,

Destfino is one in a line of cases that address a narrow issue raised when a lawsuit

has been “fully adjudicated through judgment.” Lewis v. HSBC Bank USA, N.A.,

No. CV 17-00234 DKW-KSC, 2017 WL 3671279, at *10 (D. Haw. Aug. 25,

2017). Strong competing interests in such cases, including the tax on both court

systems and the parties, weigh in favor of excusing the defect rather than reversing

a judgment and remanding the case to start anew in state court. Id. Those concerns

do not apply where, as here, the “case is in its earliest stages at the trial level and

remand will have a limited impact on the case, if at all.” Id. In the typical context

of a remand motion, courts must “enforce the procedural requirements associated

with removal.” Id.

Under the rules of removal, a “defendant [has] 30 days after receipt or

service of an initial pleading or summons to file a notice of a removal.” Palmeira

v. CIT Bank, N.A., No. CV 17-00275 ACK-RLP, 2017 WL 4797515, at *3 (D.

Haw. Oct. 24, 2017) (citing 28 U.S.C. § 1446(b)(2)(B)). These “time limits . . . are

mandatory,” and a “timely objection to a late petition will defeat removal.” Id.

(quoting Smith v. Mylan Inc., 761 F.3d 1042, 1045 (9th Cir. 2014)). Applying this

requirement in a multi-defendant case, numerous courts have affirmed that

“defendants must consent to removal within the 30-day removal period of the last-

served defendant.” Lopez, 2020 WL 4192260, at *4 (collecting cases); Zambrano

v. New Mexico Corr. Dep’t, 256 F. Supp. 3d 1179, 1186 (D.N.M. 2017)

(remanding action for lack of compliance); Palmeira, 2017 WL 4797515, at *5

(same).

Here, Piste, the last-served defendant, filed a joinder to Defendants’ notice

of removal on September 8, 2020. Dkt. No. 15. This was outside the 30-day

removal period, which began running when Piste was served on July 6, 2020. See

Nguyen Decl. Ex. A. Thus, because the notice of removal was procedurally

defective and the attempt to cure the defect was untimely, the requirements for

removal were not met and remand is proper. See Lopez, 2020 WL 4192260 at *4;

28 U.S.C. § 1447(c).

C. The Court Declines To Award Attorneys’ Fees And Costs.

When a federal court remands a previously removed case, the “order

remanding the case may require payment of just costs and any actual expenses,

including attorney fees, incurred as a result of the removal.” 28 U.S.C.A. §

1447(c). Courts may award attorney fees only where the removing party lacks an

objectively reasonable basis for seeking removal. Martin v. Franklin Capital

Corp., 546 U.S. 132, 141 (2005).

Here, the Court declines to award fees and costs particularly because “there

is no evidence that the removal was made in bad faith.” Beltran, 2009 WL 585880,

at *3. Though the removal was ultimately improper, it was not so contrary to clear

law to justify fees and costs. Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062,

1065 (9th Cir. 2008) (noting removal is not objectively unreasonable “solely

because the removing party's arguments lack merit, or else attorney’s fees would

always be awarded whenever remand is granted”).

IV. CONCLUSION

For these reasons, the Court GRANTS Defendant’s request for judicial

notice of the state court complaint but DENIES the request for judicial notice of

the collective bargaining agreements. The Court REMANDS this case to the state

court from which it was removed and DENIES Plaintiff’s requests for attorneys’

fees and costs.

IT IS SO ORDERED.