Free Reply to Opposition - District Court of California - California

Case 3:08-cv-02831-MHP

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Gregory M. Haynes, Esq. SBN: 111574 2443 Fillmore, #194 San Francisco, CA 94115 (415) 546-0777 Attorney for Plaintiffs Telitha Ball, et. al. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Telitha Ball, et. al., Plaintiffs Action No. 08-02831-MHP Reply to Opposition to Motion to remand and Order for payment of Costs And attorney fees City and County of DATE: Aug 11, 2008 San Francisco, et al. TIME: 2:00p.m. Defendants PLACE: Courtroom 15 Judge: Hon. Marilyn H. Patel _____________________________/

Defendants concede that the matter should be remanded and object to costs and attorney fees being imposed. Costs and attorney fees should be imposed the removal to waive the 30 day as was unreasonable and defendants' refusal time period to file a motion to

remand and at the same time insist on a factually incorrect stipulation, was unreasonable.

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Without the waiver, the motion to remand would be waived due to defendants clearly and demonstrably unreasonable position regarding the stipulation. I Removal Unreasonable The removal was unreasonable as 1) there was no attempt to verify or contact the other defendants, including Earnest Ferrando, to determine whether they had been served, as the law requires all served defendants to join in the complaint; and 2) while Fong was served, she did not join the removal, arguing she was sued in her official capacity, where clearly established law provides she used in her individual capacity. See Romano v. Bible (9th Cir 1999) 169 F3d 1182, 1186 The defendant City and County of San Francisco, Heather Fong and Earnest Ferrando were served prior to the removal. The removal was by the City and County of San Francisco and Heather Fong in her official capacity. Earnest Ferrando did not join the notice removal. Further, Heather Fong, in her individual capacity does not join the removal. The notice of removal does not indicate why all the defendants have not joined the petition. for

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Accordingly, the notice of removal was defective and unreasonable. Further, defendants argument that it was reasonable to make no inquires as to whether the defendants were served, is unreasonable. Also, the defendant's refusal to even have the Heather Fong join the notice of removal is also unreasonable, as she was served and she is sued in her individual capacity. While the law provides that if there is any doubt of the capacity in which a person is sued--individual or official capacity-- , the law provides that it is assumed that it is the 1186 Also, the defendants could, and should served. have made inquiries as was to whether the defendants had been Rather, defendants took the unreasonable viewing the case in the narrowest form. Arguing, for position of individual capacity. Romano v. Bible (9th Cir 1999) 169 F3d 1182,

It made no inquiries as to who had been served; and, viewed the service in the narrowly: example, that Fong was served in her official capacity with no legal or factual support therefore. Here, defendants had no objectively reasonable basis for believing that all necessary parties to the removal had joined, clearly contrary to clearly established law.

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II Failure To Waive the 30 day limit to Remand Was Unreasonable and the cause of the Necessity of filing the Motion to Remand The unreasonable conduct of the defendants is highlighted by plaintiffs attempt to have the matter remanded to state court, by stipulation. First, the defendants insist on having information in the stipulation which is not true. "individual capacity" of Kimberly Bliss. Clearly, Fong did not remove in her individual capacity. capacity" Even defendants now concede in their See page 5 of opposition. opposition papers that Fong removed "in her official While plaintiffs attempted to have this corrected in an e-mail to defense counsel received on June 27, See Exhibit F of the 2008, defense counsel refused to correct the same in a return e-mail on June 27, 2008. declaration of Kimberly Bliss Further, since defense counsel was going to be unavailable within the next few days, plaintiffs wanted a commitment from defense counsel that it would waive the 30 day limit on filing a motion to remand, while the stipulation was agreed upon. Thus, if defendants somehow refused to make the reasonable changes which were recommended, plaintiffs
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the stipulation provides that Fong removed in her See Exhibit E of the declaration

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would still be able to file a motion to remand, as it did. Had the waiver been granted, then there would be no need to file a motion, as the stipulation could be finalized when defense counsel returned from her vacation.

In defendants' opposition, they offer no explanation was they could not waive the 30 day time limit to file the motion for remand. Without it, plaintiffs would be forced to sign a stipulation which was inaccurate or waive the remand motion. therefore was concerned about the stated facts in the stipulation. Defendants forced plaintiffs to file the motion for remand by 1) unreasonably removing the matter and then unreasonably agreeing to waive time to remand in III Conclusion Based on the above, this court should remand the matter to state court and award plaintiffs' reasonable costs and attorney fees. order to stipulate that the matter should be remanded. Plaintiff was also concerned about future attempts to removal and

DATED:

_______________________________ Gregory M. Haynes Attorney for Plaintiffs
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