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Ninth Circuit:
Superior Court Complaint Is Not ‘Filed’ Until File-Stamped
Opinion Says Date of Electronic Filing Does Not Govern for Removability Purposes
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday, as a matter of first impression, that attempts to remove to federal court three product liability actions filed in a California superior court after the complaints had been submitted to the state court electronically, but before issuance of a case number, were ineffective as the cases did not yet exist.
Judge Consuelo M. Callahan wrote the opinion finding that District Court Judge Jinsook Ohta of the Southern District of California did not exceed her authority in remanding the matters to state court. Judges Ryan D. Nelson and Bridget S. Bade joined in the opinion.
Removal was sought on the basis of diversity by Dexcom, Inc., a California citizen, in the three cases, each filed by a resident of a different state, and each represented by the same lawyer. The amounts sought exceeded $75,000, the jurisdictional minimum for removal.
Electronic Submission
One of the complaints, in which Lauren Casola, a resident of Georgia, was the plaintiff, was electronically submitted on Wednesday, Nov. 23, 2022, the day before Thanksgiving. A footnote advises that the other two cases “followed the same procedural chronology as Casola’s, with some differences in exact dates which do not impact our analysis and are therefore omitted.”
It was not until the following Tuesday that the clerk endorsed Casola’s complaint as “ELECTRONICALLY FILED” on Nov. 29 at 3:31 p.m. and issued a summons reflecting that time and date of filing.
Meanwhile, Dexcom—which received notice of the submission on Nov. 23 through Courthouse News Service, an online resource that provides subscribers with daily reports of new filings—had filed its notice of removal on Nov. 28.
Motions for Remand
On Dec. 29, the plaintiffs filed motions for a remand to the San Diego Superior Court, citing 28 U.S.C. §1441(b)(2) which prohibits removal where jurisdiction is claimed based on diversity jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”
However, under §1447(c), a motion for a remand “must be made within 30 days after the filing of the notice of removal.” The motions came 31 days after Dexcom’s notice of removal.
Ohta nevertheless granted the plaintiffs’ remand motions, writing that “[a] proper removal requires a complaint to have first been filed.” She concluded that Dexcom’s Nov. 28 notices of removal were defective and did not start the timer on the 30-day window.
‘Snap’ Removals
Callahan agreed, saying that Dexcom, in filing its removal notice when it did, “was trying to effect what is known as a ‘snap removal’—filing its notices of removal before service of the summons and complaint.” She continued:
“In fact, Dexcom was attempting an even snappier version of the typical snap removal. Dexcom was not just attempting removal pre-service but…also pre-filing of the underlying complaints in state court.
“Like the district court, we conclude that Dexcom’s ‘super snap removals’ were ineffectual. These were attempts to remove cases that did not yet exist as civil actions pending in state court, and thus Dexcom’s initial notices of removal were legal nullities that did not start the 30-day remand clock under § 1447(c).” Dexcom took the stance that filing took place on Nov. 23 when Casola electronically submitted her complaint. Callahan responded:
“We are aware of no California case discussing at what moment a complaint is actually filed, as opposed to when it is deemed filed for timeliness purposes.”
She acknowledged that the California Supreme Court in its 1881 decision in Tregambo v. Comanche Mill & Mining Company said, with internal quotes omitted:
“Filing a paper consists in presenting it at the proper office, and leaving it there, deposited with the papers in such office. Indorsing it with the time of filing is not a necessary part of filing.”
But, Callahan wrote, “Tregambo long predates the present detailed electronic filing provisions” and dealt with the filing of demurrers, not a complaint.
‘Safe Harbor’
She reasoned:
“[G]iven that snap removal remains an available option for defendants at least in some district courts in California, adopting Dexcom’s delivery-as-filing rule would effectively give in-forum defendants with subscriptions to e-filing monitoring services a safe harbor in which to accomplish snap removals unhindered by speedy service of process. As both sides acknowledged at oral argument, Plaintiffs could not serve Dexcom until they received a copy of their respective summonses from the Superior Court. Service of summons is what gives a superior court—and courts, generally—jurisdiction over a defendant (unless the defendant enters a general appearance).”
The judge declared:
“[W]e hold that, for purposes of removability, an electronically submitted complaint is not ‘filed’ in California state court until it is processed and endorsed or otherwise acknowledged as officially filed by the clerk of the court.”
Callahan specified that “the present appeals do not offer us the chance to decide the permissibility of snap removals in the Ninth Circuit” and said:
“While the final chapter on snap removals in the Ninth Circuit remains to be written, today we close the book on California defendants’ attempts at ever-snappier snap removals. Those being sued in state court must wait at least until the case against them becomes a ‘pending’ ‘civil action’…before removing the matter to federal court. In California, this means waiting until the complaint has been officially filed in the superior court.”
Her opinion dismisses the consolidated appeals and says:
“Given the issues of first impression here presented, each party shall bear its own costs of appeal.”
The case is Casola v. Dexcom, Inc., 23-55403.
Case Not Discussed
The jurist did not discuss the Oct. 4, 1994, decision by Div. Seven of this district’s Court of Appeal in Mentzer v. Hardoin. Under the opinion in that case by Presiding Justice Paul A. Turner, now deceased, the San Diego Superior Court’s clerk, in processing the complaints on Nov. 29, 2022, should have designated them as having been filed on Nov. 23.
The case disapproved of a practice of marking arbitration awards as “received” on the date of presentation and marking them “filed” one month later. Turner wrote:
“This practice conflicts with the requirements imposed by Government Code section 69846.5 that documents be filed the date they are received by the court clerk.”
That section says:
“The clerk of the superior court shall endorse on each paper filed with the court the day, month, and year it is filed.”
Turner declared:
“Presentation of the document, in this case an arbitrator’s award, to a deputy clerk constitutes the act of filing….Once filed, Government Code section 69846.5 requires that date be placed on the award.”
He added:
“[T]the clerk should file stamp the award as of the date it is received.”
A California Supreme Court case cited by Turner was more recent than Tregambo. In United Farm Workers of America v. Agricultural Labor Relations Board, Justice Otto Kaus, now deceased, wrote:
“[W]e conclude that ‘filing’ for purposes of compliance with the time limits of Labor Code section 1160.8 means what it does in all other contexts: actual delivery of the petition to the clerk at his place of business during office hours….Thus, it is the filer’s actions that are scrutinized in determining whether a petition was timely filed.”
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