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8/12/2019 Mcinchak Notice of Motion and Motion to Remand Case to State Court
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Case5:14-cv-03084-RMW Document9 Filed08/01/14 Page1 of 2
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Michelle A Welsh, SBN 84127
STONER, WELSH SCHMIDT
413 Forest A venue
Pacific Grove,
CA
93950-4201
Telephone: 831-373-1993
Facsimile: 831-373-1492
Email:
MA
6 Attorneys for Plaintiff, Steven Mclnchak
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UNITED
STATES
DISTRICT
COURT
NORTHERN
DISTRICT
OF
CALIFORNIA
STEVEN
MciNCHAK
PETITIONER/Plaintiffs
v
CITY OF CARMEL-BY-THE-SEA, JASON
STILWELL, CITY ADMINISTRATOR OF
THE CITY OF CARMEL BY-THE-SEA,
SUSAN PAUL, ADMINISTRATIVE
SERVICES DIRECTOR OF THE CITY OF
CARMEL BY-THE-SEA; AND DOES 1-50,
inclusive,
Defendants.
CASE NO: 5:14-CV-03084 (HRL)
Hearing Date: September 30, 2014
Hearing time: 10:00
am
Monterey County Superior Court
Case No: M128062
NOTICE
OF
MOTION AND MOTION
TO
REMAND CASE TO STATE COURT
Action Filed: June 4, 2014
Discovery Cutoff: Not Set
Trial Date:
Not
Set
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
NOTICE IS HEREBY GIVEN that pursuant to 28 USC 1447
on
September
30 2014
at
10:00 a.m. or as soon thereafter as the matter may be heard in Courtroom 2 of the above entitled
court, located at 280 S. First Street, 5th Floor, San Jose, California, 95113. Plaintiff Steven
Mcinchak will move this court for an order remanding the above-entitled matter to the Superior
Court of California, Monterey County.
The motion is made on the ground that the court does not have subject matter jurisdiction
over the causes of action alleged in this complaint because there is no federal question presented.
NOTICE OF MOTION AND MOTION TO REMAND CASE TO STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
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8/12/2019 Mcinchak Notice of Motion and Motion to Remand Case to State Court
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The motion is based on this notice
of
motion, and the accompanying memorandum of
points and authorities served and filed herewith, the papers and records on file herein, and on such
other oral and documentary evidence as may be presented at the hearing
of
the motion.
Dated:
:T
3
f
2014
STONER, WELSH SCHMIDT
c
Michelle A. Welsh
Attorneys for Petitioner/Plaintiff, STEVEN MciNCHAK
NOTICE OF MOTION AND MOTION TO REMAND CASE TO STATE COURT
CASE NO.: 5:14-CV-030084 HRL)
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8/12/2019 Mcinchak Notice of Motion and Motion to Remand Case to State Court
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Case5:14-cv-03084-RMW Document9-1 Filed08/01/14 Page1 of 6
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Michelle A Welsh,
SBN
84127
STONER,
WELSH
SCHMIDT
413 Forest A venue
Pacific Grove, CA 93950-4201
Telephone: 831-373-1993
Facsimile: 831-373-1492
Email: [email protected]
6
Attorneys for Plaintiff, Steven Mcinchak
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UNITED STATES
DISTRICT COURT
NORTHERN
DISTRICT OF CALIFORNIA
STEVEN MciNCHAK
PETITIONER/Plaintiffs
v
CITY OF CARMEL-BY-THESEA JASON
STILWELL,
CITY
ADMINISTRATOR OF
THE CITY OF CARMEL BY-THE-SEA,
SUSAN PAUL ADMINISTRATIVE
SERVICES DIRECTOR OF THE
CITY
OF
CARMEL BY-THE-SEA; AND DOES 1-50,
inclusive,
Defendants.
CASE NO: 5:14-CV-03084 (HRL)
Hearing Date: September 30, 2014
Hearing Time: 10:00
am
Monterey County Superior Court
Case No: M128062
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
MOTION TO REMAND CASE TO STATE
COURT
Action
Filed: June 4, 2014
Discovery Cutoff:
Not
Set
Trial Date: Not Set
I
STATEMENT OF ISSUES TO BE DECIDED.
A. Whether This Case Should Be Remanded To State Court Because t
Does Not Allege Any Claim Arising Under The Constitution Treaties
Or Laws f The United States?
Federal question jurisdiction .. exists only
if
plaintiff's right to relief depended necessarily
on a substantial question
of
federal law.
Merrell Dow Pharmaceuticals Inc. v Thompson
478 U.S
804, 807 (1986). Plaintif f's complaint does not plead any violations of federal law. The compla in
seeks plaintiff's reinstatement to his
job
with the City of Carmel, after he was placed
on
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
3
8/12/2019 Mcinchak Notice of Motion and Motion to Remand Case to State Court
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administrative leave without cause and without due process
of
law secured by Article
I
Section 2 o
the Constitution
of
the State
of
California .. Complaint, page 2, second paragraph. Further, the
City's actions violated Petitioner/plaintiffs right to privacy and impaired Petitioner/Plaintiffs vested
contractual rights in violation
of
the Constitution of the State
of
California at Article
I
Section
9.
The
City also violated its own Ordinances. Id. The complaint also alleges that the City and its agents
have instituted a pattern and practice of discrimination based on age causing a disparate impact on
older employees which is continuing in violation
of
California law (the California Fair Employmen
and Housing Act.) Complaint, page 7, 116. The complaint also alleges defendants defamed him in
violation of California Civil Code Sections
45
and
46(1), (2)
and
(5).
Complaint, page
12,
,37. The
Complaint alleges intentional and negligent infliction
of
emotional distress (pages
14
and
15)
and an
action for declaratory relief and reinstatement to his position pursuant to California Code of Civi
Procedure Section
1060
and the Constitution and laws of the State of California. Complaint, page
17,
lines
2
and
3.
There is only one passing reference to unlawful conduct in violation of California and federal
law, and the California and United States Constitutions
in
the context
of
alleging arbitrary and
capricious conduct y Defendants to support an award of attorneys' fees under California Law, a
Government Code section 800. Complaint, page 7, par. 18. The Complaint identifies
no
specific
federal law or provision of the United States Constitution that provides plaintiff any relief. The
complaint invokes no federal statutory or Constitutional right. Consequently, this case does not arise
under federal law and should be remanded to state court.
See Franchise Tax Board
v
Construction
Laborers Vacation Trust
463 U.S. 1 (1983).
B ARGUMENT
A.
Removal
of Cases
Involving a Federal Question
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
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8/12/2019 Mcinchak Notice of Motion and Motion to Remand Case to State Court
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Case5:14-cv-03084-RMW Document9-1 Filed08/01/14 Page3 of 6
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Federal courts have limited jurisdiction to hear only those cases specified by the Constitution
or the Congress.
Kokkonen
v
Guardian Life Ins Co o America 511
U.S.
375
(1994).
28
USC
Section 1441(a) authorizes removal
o
civil actions within the original jurisdiction
o
the federal district courts. Section
1441
(b) reads, in part:
Any civil action
o
which the district courts have original jurisdiction founded on a claim or
right arising under the Constitution, treaties or laws o the United States shall be removable withou
regard to the citizenship or residence
o
the parties.
28
U.S.C.
§
1441(b).
This section 1441 (b), arising under the Constitution, treaties, or laws o the United States, is
nearly identical to the language arises under the Constitution, laws, or Treaties
o
the United States,
which is u ~ e in Section 1331
o
Title 28, conferring federal question jurisdiction on the federal
courts. Therefore, it is appropriate to follow the general principles governing federal question
14
. jurisdiction when determining removal jurisdiction.
Page
v
Tri-City Healthcare Dist.
860
F.
Supp
15
16
17
18
19
20
21
22
23
24
25
6
l
28
2d 1154 (S.D. Cal. 2012).
Removal is proper only when a right created by the Constitution, a treaty, or other federal law
is an essential element o the plaintiff's properly pleaded claim for relief. Lippitt v Raymond James
Financial Services Inc. 340 F.3d 1033 (9th Cir. 2003). In this case, neither federal law nor the U.S
Constitution is a necessary element
o
plaintiff's claims.
B Definition
o
Arising Under
Article III, Section 2 o the Constitution provides that the judicial power
o
the United States
extends to cases arising under this Constitution, the Laws o the United States, and Treaties made, o
which shall be made, under their Authority. The meaning o arising under is the requirement tha
the plaintiff's well-pleaded complaint use federal law that is central to the dispute. Empire
Healthchoice Assur. Inc.
v
McVeigh
547 U.S. 677, 699 (2006).
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
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8/12/2019 Mcinchak Notice of Motion and Motion to Remand Case to State Court
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Constitutional provision. As in Rains the Complaint references federal law
as
one
of
several source
of evidence of Defendants' arbitrary and capricious conduct sufficient to support an award o
attorney's fees under California law, which can be awarded by the court only
if
Plaintiff prevails in hi
state law claims. California Government Code section 800. That statute expressly provides a
California Government Code section 800(b : This section is ancillary only, and shall not be
construed to create a new cause of action . Each cause of action stated in the Complaint arises from
California statutes and Constitutional provisions. Each cause of action
is
independent from any
federal right or authority. Each is complete in and of itself without having to resort to federal law to
obtain relief. Even where a claim can be supported by alternative and independent theories one o
which is a state law t h o r ~ and one of which is a federal law theory federal question jurisdiction
does not attach unless federal law is an essential element of each claim. Christianson v. Col
Industries Operating Corp. 486 U.S. 800 at 810, 108 S.Ct. 2166, at 2174, 100 L.Ed.2d
811
(1988)
D. Defendant Cites
Incorrect
Removal Statute
Defendant incorrectly cites to 28 U.S.C. § 1441(b) as basis for removal to federal court. §
1441(b) is for removal based on diversity. Notice
of
Removal Cover Page, 1: 15-21. Parties are
citizens of the same state and therefore jurisdiction cannot be granted under this statute. Remova
then is improper. Trask v. Kasenetz 818 F. Supp. 39 (E.D. N.Y. 1993).
E. Removal is Disfavored So The Exercise
Of
Removal Jurisdiction Is Strictly
Construed.
Am.
Fire
Cas. Co. v.
Finn.
341
U.S.
6, 10,
(1951). Abrego
v.
Dow
Chern.
Co.
443
F.3d
676, 685 (9th Cir. 2006). A removal statute must be strictly construed, with all doubts and
ambiguities resolved against removal and in favor of remand. Shamrock Oil Gas Corp.
v.
Sheets
313
U.S. 100, 108 (1941).
This strong presumption against removal demonstrates that the defendant has the burden o
establishing that removal is proper. Here, defendants incorrectly cite the removal statute and also d9
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
8/12/2019 Mcinchak Notice of Motion and Motion to Remand Case to State Court
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not properly establish jurisdiction
by
stating facts that prove the claims in the pleading arise under a
specific federal law. Any ambiguity should compel an order remanding this matter to state court.
Dated:
T
·
I
2014
STONER, WELSH SCHMIDT
- - u v ? t / ~ L
Michelle A Welsh
Attorneys for Petitioner/Plaintiff, STEVEN MciNCHAK
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
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8/12/2019 Mcinchak Notice of Motion and Motion to Remand Case to State Court
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Case5:14-cv-03084-RMW Document9-2 Filed08/01/14 Page1 of 11
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Michelle
A
Welsh, SBN 84127
STONER, WELSH SCHMIDT
413 Forest A venue
Pacific Grove, CA 93950-4201
Telephone: 831-373-1993
Facsimile: 831-373-1492
Email: [email protected]
6
Attorneys for Plaintiff, Steven Mcinchak
7
8
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10
12
3
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
STEVEN MciNCHAK
PETITIONER/Plaintiffs
v.
CITY OF CARMEL-BY-THE-SEA, JASON
STILWELL, CITY ADMINISTRATOR OF
THE CITY OF CARMEL BY-THE-SEA,
SUSAN PAUL, ADMINISTRATIVE
SERVICES DIRECTOR OF THE CITY OF
CARMEL BY-THE-SEA; AND DOES 1-50,
inclusive,
Defendants.
CASE NO: 5:14-CV-03084 (HRL)
Hearing Date: September 30, 2014
Hearing time: 10:00 am
Monterey County Superior Court
Case No: M128062
NOTICE
OF
MOTION AND MOTION
TO
REMAND CASE TO STATE COURT
Action Filed: June 4, 2014
Discovery Cutoff:
Not
Set
Trial Date:
Not Set
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
NOTICE
IS
HEREBY GIVEN that pursuant to 28 USC 1447 on September 30 2014 at
10:00 a.m. or as soon thereafter as the matter may be heard
in
Courtroom 2
of
the above entitled
court, located at 280 S First Street, 5th Floor, San Jose, California, 95113. Plaintiff Steven
Mclnchak will move this court for an order remanding the above-entitled matter to the Superior
Court
of
California, Monterey County.
The motion is made on the ground that the court does not have subject matter jurisdiction
over the causes
of
action alleged
in
this complaint because there is no federal question presented.
NOTICE OF MOTION AND MOTION TO REMAND CASE TO STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
8/12/2019 Mcinchak Notice of Motion and Motion to Remand Case to State Court
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The motion is based on this notice
of
motion, and the accompanying memorandum
of
points and authorities served and filed herewith, the papers and records on file herein, and on such
other oral and documentary evidence as may be presented at the hearing of the motion.
Dated:
:T t l
2014
STONER, WELSH SCHMIDT
u ~ 0 ~
Michelle
A.
Welsh
Attorneys for Petitioner/Plaintiff, STEVEN MciNCHAK
NOTICE OF MOTION AND MOTION TO REMAND CASE TO STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
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2
3
4
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Michelle A Welsh, SBN 84127
STONER, WELSH SCHMIDT
413 Forest A venue
Pacific Grove, CA 93950-4201
Telephone: 831-373-1993
Facsimile: 831-3 73-1492
Email: MA [email protected]
6
Attorneys for Plaintiff, Steven Mcinchak
7
8
9
10
12
3
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2fj
]
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
STEVEN MciNCHAK
PETITIONER/Plaintiffs
v
CITY OF CARMEL-BY-THESEA, JASON
STILWELL, CITY ADMINISTRATOR OF
THE CITY OF CARMEL BY-THE-SEA?
SUSAN PAUL, ADMINISTRATIVE
SERVICES DIRECTOR OF THE CITY OF
CARMEL BY-THE-SEA; AND DOES 1-50,
inclusive,
Defendants.
CASE NO: 5:14-CV-03084 (HRL)
Hearing Date: September 30, 2014
Hearing Time: 10:00 am
Monterey County Superior Court
Case No: Ml28062
MEMORANDUM
OF
POINTS AND
AUTHORITIES IN SUPPORT OF
MOTION
TO REMAND CASE TO STATE
COURT
Action Filed: June 4, 2014
Discovery Cutoff: Not Set
Trial Date: Not Set
I. STATEMENT
OF
ISSUES TO BE DECIDED.
A Whether This Case Should Be Remanded To State ourt Because t
Does Not Allege Any Claim Arising Under The Constitution, Treaties
Or
Laws Of
The
United States?
Federal question jurisdiction .. exists only if plaintiffs right to relief depended necessarily
on a substantial question of federal law. Merrell Dow Pharmaceuticals Inc.
v
Thompson 478 U.S
804, 807 (1986). Plaintiffs complaint does not plead any violations of federal law. The complaint
seeks plaintiffs reinstatement to his job with the City
of
Carmel, after he was placed on
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
3
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administrative leave without cause and without due process o law secured by Article I Section 2 o
the Constitution o the State o California .. Complaint, page 2, second paragraph. Further, the
City's actions violated Petitioner/plaintiffs right to privacy and impaired Petitioner/Plaintiffs vested
contractual rights in violation o the Constitution o the State o California at Article I Section
9.
The
City also violated its own Ordinances. Id. The complaint also alleges that the City and its agents
have instituted a pattern and practice o discrimination based on age causing a disparate impact on
older employees which is continuing in violation o California law (the California Fair Employmen
and Housing Act.) Complaint, page
7
~ 1 6 The complaint also alleges defendants defamed him in
violation o California Civil Code Sections
45
and 46(1), (2) and (5). Complaint, page 12 ~ 3 7 The
Complaint alleges intentional and negligent infliction
o
emotional distress (pages
14
and 15) and an
action for declaratory relief and reinstatement to his position pursuant to California Code o Civi
Procedure Section 1060 and the Constitution and laws o the State o California. Complaint, page
17
lines 2 and
3.
There is only one passing reference to unlawful conduct in violation o California and federal
law, and the California and United States Constitutions in the context
o
alleging arbitrary and
capricious conduct by Defendants to support an award
o
attorneys' fees under California Law, at
Government Code section 800. Complaint, page 7, par.
18.
The Complaint identifies
no
specific
federal law or provision o the United States Constitution that provides plaintiff any relief. The
complaint invokes no federal statutory or Constitutional right. Consequently, this case does not arise
under federal law and should be remanded to state court.
See Franchise Tax Board v Construction
Laborers Vacation Trust 463 U.S. 1 (1983).
B ARGUMENT
A.
Removal o Cases Involving a Federal Question
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
4
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3
5
6
7
8
9
10
12
3
Federal courts have limited jurisdiction to hear only those cases specified by the Constitution
or the Congress.
Kokkonen
v
Guardian Life
Ins Co
o
America 511
U.S. 375 (1994).
28
USC
Section 1441 (a) authorizes removal
o
civil actions within the original jurisdiction
o
the federal district courts. Section 1441(b) reads, in part:
Any civil action o which the district courts have original jurisdiction founded on a claim o
right arising under the Constitution, treaties or laws o the United States shall be removable withou
regard to the citizenship or residence
o
the parties. 28 U.S.C. § 1441(b).
This section 1441(b), arising under the Constitution, treaties, or laws
o
the United States, i
nearly identical to the language arises under the Constitution, laws, or Treaties o the United States,
which is
m:;ed
in Section
1331
o
Title 28, conferring federal question jurisdiction
on
the federa
courts. Therefore, it is appropriate to follow the general principles governing federal question
14
.
jurisdiction when determining removal jurisdiction. Page
v
Tri-City Healthcare Dist. 860
F
Supp
5
16
17
18
19
2
21
22
23
24
25
2fj
Z7
28
2d 1154 (S.D. Cal. 2012).
Removal is proper only when a right created by the Constitution, a treaty, or other federal law
is an essential element o the plaintiffs properly pleaded claim for relief. Lippitt v Rayrrwnd James
Financial Services Inc.
340 F.3d 1033 (9th Cir 2003). In this case, neither federal law nor the U.S
Constitution is a necessary element
o
plaintiffs claims.
B
Definition of Arising Under
Article III, Section 2,
o
the Constitution provides that the judicial power
o
the United States
extends to cases arising under this Constitution, the Laws o the United States, and Treaties made, o
which shall be made, under their Authority. The meaning o arising under is the requirement tha
the plaintiffs well-pleaded complaint use federal law that is central to the dispute.
Empire
Healthchoice Assur. Inc.
v
McVeigh
547 U.S. 677, 699 (2006).
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
5
8/12/2019 Mcinchak Notice of Motion and Motion to Remand Case to State Court
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Plaintiff pleads no specific federal law or Constitutional provision
as
the basis for any claim
The complaint reads: This action is brought to enforce the mandatory requirements o the Ordinances
and Personnel System o the City o Carmel-by-the-Sea, the Constitution and laws o the State o
California, and the mandatory duties o the City Council, the City Administrator and the City Human
Resources Director arising under those laws. Pleading: Preliminary Statement 1: 26-28. All seven
causes
o
action plead State based claims. Not a single cause o action is based on any federal law.
C The omplaint Pleads No Substantial Federal Question
Federal jurisdiction requires that a federal question be a substantial part o the case. The
substantiality requirement does not refer to the value
o
the interests that are at stake but to whethe
there
is
any legal substance to the position the may be plainly unsubstantial, either because it is
'obviously without merit' or because previous court decisions render it unsound and it cannot be
inferred that the federal question is the subject
o
controversy. A pleading that does not specify wha
laws were violated could be dismissed for failure to state a claim.
In Rains v. Criterion Systems Inc. 80 F.3d 339 (1996) the court held the district court had no
jurisdiction over a case where the plaintiff pled language similar to the complaint pled here but more
specifically mentioning Title VII.
Rains held the direct and indirect references to Title VII in those his state law causes o action
do
not make those claims into federal causes
o
action. Rather, the complaint merely incorporates
Title VII as one o several similar sources o public policy supporting defendant's state law claims. Id
In the pleading before us there is
no
legal theory connected to any federal statute or
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
6
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Constitutional provision. As in Rains the Complaint references federal law as one
of
several source
of evidence of Defendants' arbitrary and capricious conduct sufficient to support an award o
attorney's fees under California law, which can be awarded by the court only
if
Plaintiff prevails in hi
state law claims. California Government Code section 800. That statute expressly provides a
California Government Code section 800(b
:
This section is ancillary only, and shall not be
construed to create a new cause of action . Each cause of action stated in the Complaint arises from
California statutes and Constitutional provisions. Each cause of action is independent from any
federal right or authority. Each is complete in and of itself without having to resort to federal law to
obtain relief. Even where a claim can be supported by alternative and independent theories one o
which is a state law t h o r ~ and one of which is a federal law theory federal question jurisdiction
does not attach unless federal law is an
essential
element of each claim.
Christianson
v.
Col
Industries Operating Corp. 486 U.S. 800 at 810, 108 S.Ct. 2166, at 2174, 100 L.Ed.2d 811 (1988)
D Defendant Cites Incorrect Removal Statute
Defendant incorrectly cites to 28 U.S.C. § 1441(b) as basis for removal to federal court. §
1441(b) is for removal based on diversity. Notice of Removal Cover Page,
1:
15-21. Parties are
citizens of the same state and therefore jurisdiction cannot be granted under this statute. Remova
then is improper. Traskv. Kasenetz 818 F. Supp. 39 (E.D. N.Y. 1993).
E Removal s Disfavored So The Exercise
f
Removal Jurisdiction Is Strictly
Construed
Am. Fire Cas. Co. v. Finn. 341 U.S.
6,
10, (1951). Abrego v. Dow
Chern.
Co. 443 F.3d
676, 685 (9th Cir. 2006). A removal statute must be strictly construed, with all doubts and
ambiguities resolved against removal and in favor of remand. Shamrock Oil Gas Corp. v. Sheets
313
U.S. 100,
108
(1941).
This strong presumption against removal demonstrates that the defendant has the burden o
establishing that removal is proper. Here, defendants incorrectly cite the removal statute and also d9
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
8/12/2019 Mcinchak Notice of Motion and Motion to Remand Case to State Court
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not properly establish jurisdiction by stating facts that prove the claims in the pleading arise under a
specific federal law. Any ambiguity should compel an order remanding this matter to state court.
Dated:
~ >I
2014
STONER, WELSH SCHMIDT
~ ~ t / ~ 1 _ _
Michelle
A
Welsh
Attorneys for Petitioner/Plaintiff, STEVEN MciNCHAK
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
8
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Michelle A. Welsh, SBN 84127
STONER, WELSH SCHMIDT
413 Forest A venue
Pacific Grove, CA 93950-4201
Telephone: 831-373-1993
Facsimile: 831-373-1492
Email: [email protected]
6 Attorneys for Plaintiff, Steven Mclnchak
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
STEVEN MciNCHAK
PETITIONER/Plaintiffs
v
CITY OF CARMEL-BY-THE-SEA, JASON
STILWELL, CITY ADMINISTRATOR OF
THE CITY OF CARMEL BY-THE-SEA,
SUSAN PAUL, ADMINISTRATIVE
SERVICES DIRECTOR OF THE CITY OF
CARMEL BY-THE-SEA; AND DOES 1-50,
inclusive,
Defendants.
CASE NO: 5:14-CV-03084 (HRL)
Hearing Date: September 30, 2014
Hearing time: 10:00 am
Monterey County Superior Court
Case No: Ml28 62
[PROPOSED] ORDER GRANTING
PLAINTIFF S MOTION TO REMAND
Action Filed: June 4, 2014
Discovery Cutoff: Not Set
Trial Date: Not Set
Plaintiffs motion to remand this matter back to state court came on regularly for hearing on
September 30,2014, at 10:00 am a.m. in Courtroom 2 ofthe above entitled court, located at 280 S
First Street,
5th
Floor, San Jose, California, 95113. Plaintiff Steven Mcinchak appeared by counsel,
Phillip J Griego and defendants appeared by counsel Having read and
considered all the moving and opposing papers and points and authorities and having considered
oral argument
of
counsel;
ll
ll
[PROPOSED] ORDER GRANTING PLAINTIFF S MOTION TO REMAND
CASE NO.: 5:14-CV-030084 (HRL)
8/12/2019 Mcinchak Notice of Motion and Motion to Remand Case to State Court
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IT IS HEREBY ORDERED that Plaintiff s motion to remand this case to the
Superior Court
of
California, Monterey County
IS
GRANTED on the grounds that the causes
of
action alleged in Plaintiff s complaint do not arise under The Constitution, Treaties or Laws of The
United States.
Dated: , 2014
Honorable Howard R Lloyd
United States District Court
Northern District
of
California
San Jose Facility
[PROPOSED]
ORDER GRANTING PLAINTIFF S
MOTION TO REMAND
CASE
NO :
5:14-CV-030084 (HRL)
2
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PROOF OF SERVICE
I, the undersigned, hereby declare that:
I
am
over the age of eighteen and not a party to the within cause. I
am
employed with
Phillip J. Griego at 95 South Market Street, Suite 520, San Jose, California, 95113, County of
Santa Clara. I am readily familiar with this firm s practice
of
collection and processing
of
correspondence for mailing, hand delivery, overnight mail/courier and facsimile transmission.
On August 1, 2014, I served:
•
•
•
NOTICE OF MOTION AND MOTION TO REMAND CASE
TO
STATE COURT
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO REMAND CASE TO STATE COURT
[PROPOSED] ORDER GRANTING PLAINTIFF S MOTION TO REMAND
11 upon the following interested party( s)
in
said cause:
12
13
14
15
16
17
18
19
20
21
22
23
4
25
26
27
28
•
Jeffrey Alan Dinkin, Allison Elizabeth Burns, David Charles Palmer
Stradling Y occa Carlson Rauth
660 Newport Center
Dr
Ste 1600
Newport Beach, CA 92660
VIA MAIL (CCP §§ 1013(a), 2015.5)
LX_] By placing a true copy thereof in a sealed envelope(s), addressed as above, and by
depositing a true copy thereof that same day in the United States Mail in San Jose, California,
with postage thereon fully prepaid, following ordinary business practices.
VIA OVERNIGHT MAIL/COURIER (CCP
§§
1013(c), 2015.5)
U
By placing a true copy thereof in a sealed envelope(s), addressed as above, and on
that date placing such for collection for overnight delivery by providing a true copy thereof with
an authorized courier and/or overnight mail carrier, with delivery fees paid or provided, for
ddivery on the following business day, following ordinary business practices.
VIA FACSIMILE (CCP
§§
1013(e), 2015.5, CRC 2008,
FRCP
Rule 5(e))
[ ]
By
arranging for the transmission(s
of
a true copy thereof, from facsimile
number (408)293-1959 to the facsimile number(s) noted above, prior to 5:00p.m. , that same day,
in the ordinary course of business. The transmission report confirms transmission was complete
and without error. The parties have agreed to service by facsimile.
VIA HAND-DELIVERY (CCP §§ 1011, 2015.5)
U
By
placing a true copy thereof
in
a sealed envelope( s), addressed as above, and
causing same to
be
hand-served by either
an
employee
of my
firm or a retained courier, with
delivery fees paid or provided, for delivery that same day, in the ordinary course of business.
I declare under penalty of perjury that the foregoing is true and correct under the laws of .
the State of California. Executed on August 1, 2014, at San Jose, California.
1 ,,
Case Number: 5:14-CV-03084 (HRL)
Prrof
of
Service
r
7 f/ .
A J J1itrfiL
Geri Colbath
1
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PROOF OF SERVICE
I, the undersigned, hereby declare that:
I
am
over the age
of
eighteen and not a party to the within cause. I am employed with
Phillip J.
Griego at
95
South Market Street, Suite 520, San Jose, California, 95113, County
of
Santa Clara. I am readily familiar with this firm s practice
of
collection and processing
of
correspondence for mailing, hand delivery, overnight mail/courier and facsimile transmission.
On August 1 2014, I served:
•
•
•
NOTICE OF MOTION AND MOTION TO REMAND CASE TO
STATE COURT
MEMORANDUM OF POINTS AND AUTHORITIES N SUPPORT
OF MOTION TO REMAND CASE TO STATE COURT
[PROPOSED] ORDER GRANTING PLAINTIFF S MOTION TO REMAND
11 upon the following interested party(s) in said cause:
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
•
Jeffrey Alan Dinkin, Allison Elizabeth Burns, David Charles Palmer
Stradling Yocca Carlson Rauth
660 Newport Center Dr Ste 1600
Newport Beach, CA 92660
VIA MAIL (CCP
§§
1013(a), 2015.5)
[ ~ By placing a true copy thereof in a sealed envelope(s), addressed as above, and by
depositing a true copy thereof that same day in the United States Mail in San Jose, California,
with postage thereon fully prepaid, following ordinary business practices.
VIA OVERNIGHT MAIL/COURIER (CCP
§§
1013(c), 2015.5)
[ ] By placing a true copy thereof in a sealed envelope(s), addressed as above, and on
that date placing such for collection for overnight delivery by providing a true copy thereof with
an authorized courier and/or overnight mail carrier, with delivery fees paid or provided, for
ddivery on the following business day, following ordinary business practices.
VIA FACSIMILE (CCP
§§
1013(e), 2015.5, CRC 2008, FRCP Rule 5(e))
[ ] By arranging for the transmission( s)
of
a true copy thereof, from facsimile
number (408)293-1959 to the facsimile number(s) noted above, prior to 5:00p.m., that same day,
in the ordinary course ofbusiness. The transmission report confirms transmission was complete
and without error. The parties have agreed to service by facsimile.
VIA HAND-DELIVERY (CCP
§§
1011, 2015.5)
U
By
placing a true copy thereof in a sealed envelope(s), addressed as above, and
causing same to be hand-served by either an employee
of
my firm or a retained courier, with
delivery fees paid or provided, for delivery that same day, in the ordinary course ofbusiness.
I declare under penalty of perjury that the foregoing is true and correct under the laws of
the State ofCalifornia. Executed on August
1
2014, at San Jose, California.
. M. i u : ~ r t L
Geri Colbath