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Judge Percy Anderson Exceeded Authority in Remanding Case Sua Sponte—Ninth Circuit
By a MetNews Staff Writer
District Court Judge Percy Anderson of the Central District of California over-stepped his authority in remanding a case to the Los Angeles Superior Court on his own motion, the Ninth U.S. Circuit Court of Appeals declared yesterday, directing that the case be snatched back from the state court.
Bryan Hunt, a Los Angeles County firefighter, on June 18, 2021 brought a putative action in the Superior Court against the City of Los Angeles and the county under the Private Attorney General Act, the Unfair Competition Law, and two federal statutes.
The complaint alleges “unlawful conduct, including: the failure to pay wages, overtime compensation, and reporting time pay; the failure to reimburse employees for all necessary expenses and losses incurred in connection with their employment; the failure to furnish accurate wage statements and keep accurate payroll records; and other legal obligations.”
Procedural Defect Spotted
The county removed the case to federal court. Anderson, acting sua sponte, shunted it back, declaring in an Aug. 2, 2021 minute order:
“The Notice of Removal is procedurally defective here because the City has not consented or joined in the Notice of Removal Moreover, the Notice of Removal did not include a sufficient explanation for the absence of a joinder by the City, or any reason why the City’s joinder was not necessary. The Court therefore concludes that the County’s Notice of Removal is procedurally defective. At the hearing held on August 2, 2021, counsel for plaintiff Bryan Hunt declined to waive the procedural defect. Accordingly, this action is remanded to Los Angeles County Superior Court….”
The county moved for reconsideration, which Anderson denied on Sept. 15, 2021, insisting:
“The Court committed no error in remanding the action to Los Angeles Superior Court.”
Ninth Circuit’s Opinion
It did commit error, a Ninth Circuit panel held yesterday in a memorandum opinion. The panel was comprised of Circuit Judges Ryan D. Nelson and Milan D. Smith Jr., joined by District Court Judge Gershwin A. Drain of the Eastern District of Michigan, sitting by designation.
They said:
“We have held on several occasions that a plaintiff must file a motion before a district court may remand based on a procedural defect in the removal….
“Hunt argues that the district court did not exceed its authority because Hunt’s decision not to waive the procedural defect at the status conference constituted an oral ‘motion’ to remand. We disagree. As an initial matter, the Central District of California’s local rules generally bar oral motions, and there is no evidence that the district court made an exception in this case….Further, the record demonstrates that the district court, not Hunt, proposed remanding the case. Indeed, Hunt’s counsel only acquiesced in the district court’s suggestion after repeatedly asking for and being denied additional time to consider it. In sum, there is no evidence that Hunt moved to remand the case, orally or otherwise.”
The case has been on hold in the courtroom of Los Angeles Superior Court Judge Elihu M. Berle pending the outcome of the county’s appeal in the Ninth Circuit.
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