1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6

MADISON KUCHTA,

7 Case No. 22-cv-02198-JCS Plaintiff, 8 v. ORDER DENYING MOTION TO 9 REMAND

NATIONAL RAILROAD PASSENGER

10 CORPORATION DBA AMTRAK, et al., Re: Dkt. No. 7 11 Defendants.

12 13 I. INTRODUCTION 14 In this wrongful death case, Plaintiff Madison Kuchta has named the National Railroad 15 Passenger Corporation (“Amtrak”) and the County of Contra Costa (“County” or “Contra Costa 16 County”) as defendants in connection with the tragic death of her father, Brian Kuchta. According 17 to Plaintiff, Mr. Kuchta was killed when he attempted to retrieve his dog from the railroad tracks 18 and was hit by an Amtrak train. The case was initially filed in the Superior Court for the County 19 of Contra Costa (“Contra Costa Superior Court”) on December 8, 2021. Notice of Removal, Ex. 20 A. On April 7, 2022, after Amtrak had received a courtesy copy of the complaint requested by 21 Amtrak – but before either defendant had been served – Amtrak removed the case to this Court 22 under 28 U.S.C. § 1331 on the basis that Amtrak was incorporated by an Act of Congress, 45 23 U.S.C. § 501 et seq., and the United States of America owns more than 50% of Amtrak’s capital 24 stock. Id. ¶ 3. 25 Presently before the Court is Plaintiff’s motion to remand the case to state court 26 (“Motion”). In her opening brief, Plaintiff argues that the removal was procedurally defective 27 because all defendants did not consent to removal in the notice of removal. In her Reply brief, 1 she has never actually formally served Amtrak. The Court finds that the Motion is suitable for 2 determination without oral argument and therefore vacates the motion hearing set for August 26, 3 2022 at 9:30 a.m. The Case Management Conference set for the same date will be conducted 4 at 2:00 p.m. instead of 9:30 a.m. For the reasons stated below, the Motion is DENIED.1 5 II. ANALYSIS 6 A. Legal Standards 7 Under 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the district 8 courts of the United States have original jurisdiction, may be removed by the defendant or the 9 defendants, to the district court of the United States for the district and division embracing the 10 place where such action is pending.” 28 U.S.C. § 1441(a). In addition, where removal is based 11 solely on diversity under 28 U.S.C. § 1332(a), the case “may not be removed if any of the parties 12 in interest properly joined and served as defendants is a citizen of the State in which such action is 13 brought.” 28 U.S.C. § 1441(b). This is referred to in the case law as the “forum-defendant rule.” 14 See, e.g., Goodwin v. Reynolds, 757 F.3d 1216, 1220 (11th Cir. 2014). 15 “If at any time before final judgment it appears that the district court lacks subject matter 16 jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). In addition, where the removal is 17 procedurally defective, the party opposing removal may bring a motion to remand within 30 days 18 after a notice of removal is filed. Id. The procedures for removal are set forth in 28 U.S.C. § 19 1446, which provides, as relevant here, as follows: 20 (a) Generally.--A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the 21 United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 22 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy 23 of all process, pleadings, and orders served upon such defendant or defendants in such action. 24 (b) Requirements; generally.--(1) The notice of removal of a civil 25 action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the 26 initial pleading setting forth the claim for relief upon which such 27 action or proceeding is based, or within 30 days after the service 1 of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the 2 defendant, whichever period is shorter.

3 (2)(A) When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served 4 must join in or consent to the removal of the action.

5 (B) Each defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in 6 paragraph (1) to file the notice of removal.

7 (C) If defendants are served at different times, and a later-served defendant files a notice of removal, any earlier-served defendant 8 may consent to the removal even though that earlier-served defendant did not previously initiate or consent to removal. 9 . . . 10 11 28 U.S.C. § 1446(a). 12 B. Whether Removal Was Procedurally Defective Because Contra Costa County Did Not Consent in the Notice of Removal 13 Plaintiff argues in the Motion that Amtrak’s removal was defective because it removed the 14 case before Contra Costa County was served with process and without the County’s consent to the 15 removal. Motion at ECF pp. 5-6. According to Plaintiff, such a removal constitutes a “snap” 16 removal, which is a form of gamesmanship intended to thwart the plaintiff’s choice of forum and 17 therefore, is disfavored. Id. (citing Goodwin v. Reynolds, 757 F.3d 1216, 1221 (11th Cir. 2014); 18 Oxendine v. Merck & Co., 236 F. Supp. 2d 517, 524 (D. Md. 2002)). The snap removal cases, 19 however, are based on the forum-defendant rule, which applies only where removal is based solely 20 on diversity jurisdiction. As the court in Goodwin explained, the rationale for the rule is as 21 follows: 22 The forum-defendant rule clearly contemplates Plaintiff's ability to defeat Defendants’ purported right of removal in this case. . . . The 23 only reason this case is in federal court is that the non-forum defendants accomplished a pre-service removal by exploiting, first, 24 Plaintiff’s courtesy in sending them copies of the complaint and, second, the state court’s delay in processing Plaintiff’s diligent 25 request for service. Defendants would have us tie the district court’s hands in the face of such gamesmanship on the part of Defendants. 26 Moreover, their argument, if accepted, would turn the statute's “properly joined and served” language on its head. 27 640, 644 (D.N.J.2008). The published legislative history apparently 1 contains no explanation for this addition. Id. (describing a “thorough examination” thereof). Multiple courts, however, have interpreted it 2 as an effort to prevent gamesmanship by plaintiffs. See id. at 643 (collecting cases). In the view of these courts, the purpose of the 3 language is “to prevent a plaintiff from blocking removal by joining as a defendant a resident party against whom [the plaintiff] does not 4 intend to proceed, and whom [the plaintiff] does not even serve.” Id. at 645. We find this interpretation persuasive. Because the likely 5 purpose of this language is to prevent gamesmanship by plaintiffs, moreover, we cannot believe that it constrains the district court's 6 discretion under Rule 41(a)(2) to undo Defendants’ gamesmanship in the circumstances at bar. 7 8 Goodwin v. Reynolds, 757 F.3d at 1221. 9 The forum-defendant rule, on its face, does not apply here because Amtrak’s removal was 10 not based on diversity jurisdiction. Likewise, the gamesmanship that comes into play where there 11 is a “snap” removal has no relevance in this case because Amtrak would have been entitled to 12 remove the case on the basis of original jurisdiction regardless of whether or not Contra Costa 13 County had been served at the time of removal. See Moore v. City of Merced, No. 119 CV 01183 14 LJOSKO, 2019 WL 6467324, at *1 (E.D. Cal. Dec. 2, 2019). Indeed, Plaintiff does not dispute 15 that federal courts have original jurisdiction over cases against Amtrak because the United States 16 owns more than half of Amtrak’s capital stock. Furthermore, it is well-established that while all 17 defendants who have been properly served must join a notice of removal, see Emrich v. Touche 18 Ross & Co., 846 F.2d 1190, 1993 n.1 (9th Cir. 1988), those named as defendants but not yet 19 served in the state court action need not join in the notice of removal. Destfino v. Reiswig, 630 F3d 20 952, 955 (9th Cir. 2011). Therefore, the Court rejects Plaintiff’s argument that the case must be 21 remanded to state court on the basis that Amtrak removed the case before Contra Costa County 22 was served.2 23 C. Whether the Removal Was Procedurally Defective Because Amtrak Has not 24 Been Served 25 In her Reply, Plaintiff does not defend her reliance on the local defendant rule in the 26 Motion but instead, makes a new argument. In particular, she contends the removal was improper 27 1 because Amtrak has never been served in this case. There is no dispute that Plaintiff has not served 2 Amtrak, see Opposition at 4 (“Amtrak has never been served.”). Nonetheless, Plaintiff devotes a 3 significant portion of her reply brief to arguing that service on Amtrak has not been effectuated, 4 and provides two supporting declarations on that question. She goes on to point to a Louisiana 5 case, Moore v. City of New Orleans, No. CIV. A. 99-3465, 1999 WL 1277528 (E.D. La. Dec. 22, 6 1999), in support of her assertion that because Amtrak has not been served, its removal is 7 procedurally defective and remand is required. Moore does not support Plaintiff’s position, 8 however. 9 In Moore, the plaintiff brought civil rights claims against the City of New Orleans (“City”) 10 and four police officers in state court, filing the complaint on September 9, 1999. 1999 WL 11 1277528, at *1. The City removed the case to federal court on November 16, 1999, stating in the 12 notice of removal that it had been served on September 22, 1999. Id. The court held that the 13 defendant’s removal was untimely because it occurred more than 30 days after the date on which 14 defendant stated in the notice of removal it had been served. Id. The Moore court relied on 15 Murphy Brothers, Inc. v. Mitchetti Pipe Stringing, Inc., 526 U.S. 344 (1999), in which “the 16 Supreme Court determined that because ‘service of process . . . is fundamental to any procedural 17 imposition on a named defendant,’ the thirty day period for filing a notice of removal commences 18 only upon proper service of process.” Id. (quoting 526 U.S. at 350). Although the defendant 19 attempted to avoid remand by representing that it actually had not been served at all, the court 20 declined to rely on that representation, which was not supported by any evidence and contradicted 21 the defendant’s statement in the notice of removal regarding service. Id. Rather, the court found, 22 “[f]aced with conflicting statements from the City as to the status of service, . . . the City did not 23 carry its burden to show that removal [was] proper.” Id. 24 Murphy Brothers also addressed the timeliness of removal and in particular, whether the 25 30-day clock began to run under Section 1446(b) when the defendant was faxed a courtesy copy of 26 the complaint (44 days before removal) or when formal service was accomplished (within 30 days 27 of removal). Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. at 348. The Court found 1 the defendant, through service or otherwise, of a copy of the initial pleading[,]” the clock begins to 2 run only when service has occurred, reasoning that “[i]n the absence of service of process (or 3 waiver of service by the defendant), a court ordinarily may not exercise power over a party the 4 complaint names as defendant.” Id. at 350. 5 Moore and Murphy Brothers do not apply here. As numerous cases have held, a 6 “complaint need only be filed to be removable.” Watanabe v. Lankford, 684 F. Supp. 2d 1210, 7 1214–15 (D. Haw. 2010) (citing 28 U.S.C. § 1441(a)) (“any civil action brought in a State court of 8 which the district courts of the United States have original jurisdiction, may be removed by the 9 defendant or the defendants.”) (emphasis added by Watanabe court)). Further, in Fontalvo ex rel. 10 Fontalvo v. Sikorsky Aircraft Corp., No. 13-CV-0331-GPC-KSC, 2013 WL 3197071, at *9 (S.D. 11 Cal. June 20, 2013), the court rejected a similar argument based on Murphy for reasons that also 12 apply here. In that case, the plaintiff argued that the defendant’s pre-service removal was 13 improper because prior to receiving service of the state summons and complaint, the defendant 14 “was not a proper party before any court with the authority to remove the present action.” Id. at 15 *9. The court rejected that argument, reasoning as follows: 16 Plaintiff's reliance on Murphy Brothers is misplaced and the procedural facts support a finding that removal prior to receiving 17 formal service of process was not improper. The Supreme Court in Murphy Brothers addressed whether a defendant could be “obligated” 18 to remove an action prior to formal service, not whether a defendant is permitted to do so. Regal Stone Ltd. 881 F.Supp.2d at 1129 (citing 19 Murphy Brothers, 526 U.S. at 353–354). The purpose of § 1446(b) “assures defendants adequate time to decide whether to remove an 20 action to federal court.” Murphy Brothers, 526 U.S. at 354. Moreover, removal is appropriate upon commencement of an action. A 21 defendant seeking to remove a civil action from state court shall file in the district court where such action is pending. 28 U.S.C. § 1446(a). 22 “In California, as in the federal courts, a suit is ‘commenced’ upon filing.” Bush v. Cheaptickets, Inc., 425 F.3d 683, 686 (9th Cir.2005) 23 (citing Cal.Civ.Proc.Code § 350). 24 2013 WL 3197071, at *9. The same reasoning applies here. Because Plaintiff brought this case 25 in state court and named Amtrak as a defendant, Amtrak was entitled to remove the case under 26 Section 1441(a) regardless of whether it had been served at the time of removal. The fact that 27 Plaintiff still has not served Amtrak, while problematic for other reasons, does not make Amtrak’s 1 Hl. CONCLUSION 2 For the reasons stated above, the Motion is DENIED. 3 IT IS SO ORDERED. 4 || Dated: August 24, 2022

PH C. SPERO

6 ief Magistrate Judge 7 8 9 10 11

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