County of Santa Clara v. Ranger

3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION COUNTY OF SANTA CLARA, Case No. 22-cv-08901-BLF 8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. MOTION TO REMAND 10 KELLY ANNE RANGER, [Re: ECF 6] 11 Defendant.

13 Plaintiff County of Santa Clara (“County”) filed the present Complaint to Recover Administrative Penalties against Defendant Kelly Anne Ranger (“Ranger”) in state court on October 8, 2021. See Not. of Removal Ex. Q (Compl.), ECF 1-4. The County alleges that Ranger owned a massage business and refused to wear face masks or require her clients to wear them, in violation of public health orders issued to address the COVID-19 virus. See id. 18 On December 15, 2022, Ranger filed a Notice of Removal based on asserted federal question jurisdiction. See Not. of Removal, ECF 1. The County has filed a motion to remand the action to the Santa Clara County Superior Court, which has been fully briefed. See Mot., ECF 6; Opp., ECF 11; Reply, ECF 12. The Court finds the motion to be suitable for decision without oral argument and VACATES the hearing set for May 18, 2023. See Civ. L.R. 7-1(b). The motion is GRANTED on two grounds, discussed below.

24 First, Ranger’s Notice of Removal is untimely. A notice of removal must be filed within 30 days after service of the summons and complaint. See 28 U.S.C. § 1446(b)(1). “[T]he time limit is mandatory and a timely objection to a late [notice of removal] will defeat removal.”

27 Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir. 1980). An objection is timely if it remand the case on the basis of any defect other than lack of subject matter jurisdiction must be || made within 30 days after the filing of the notice of removal[.]”). Ranger was personally served with the summons and complaint on February 15, 2022, see Nguyen Decl. 4] 4 & Ex. 2 (POS), but she did not file her Notice of Removal until ten months later on December 15, 2022, well beyond the 30-day time limit. The County filed the current motion to remand on January 13, 2023, within || 30 days after Ranger filed her Notice of Removal. See Mot., ECF 6. Accordingly, the motion to remand is GRANTED on the ground that removal was untimely.

8 Second, Ranger has not established the existence of subject matter jurisdiction. A motion to remand must be granted if the court lacks subject matter jurisdiction. See 28 U.S.C. § 1447(c).

10 || In this case, removal was based on the assertion of federal question jurisdiction. See Not. of 11 Removal ¥ 24. “The presence or absence of federal-question jurisdiction is governed by the well- || pleaded complaint rule, which provides that federal jurisdiction exists only when a federal 13 question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. 14 Williams, 482 U.S. 386, 392 (1987). The Complaint asserts two causes of action, one under the 15 County’s Urgency Ordinance No. NS.9.291 and the second under California Government Code § || 25132. Neither presents a federal question. Ranger argues that the Complaint raises a federal 17 question based on her contention that the County’s enforcement of public health orders violates || her federal constitutional rights. That argument is without merit, as “a case may not be removed 19 to federal court on the basis of a federal defense.” Caterpillar, 482 U.S. at 393. Thus, the motion || to remand is GRANTED on the additional ground of lack of subject matter jurisdiction.

21 ORDER 22 (1) Plaintiff County’s motion to remand is GRANTED; 23 (2) This action is REMANDED to the Santa Clara County Superior Court; and 24 (3) The Clerk shall close the file.

26 || Dated: February 8, 2023 BEYH LABSON FREEMAN 28 United States District Judge