1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID EARL GRAY, No. 2:24-cv-2401-DJC-CSK P 12 Plaintiff, 13 v. ORDER 14 LUPE ALVAREZ (F.M.), et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has moved to remand this matter 18 to state court. (ECF No. 4.) The matter was referred to a United States Magistrate 19 Judge pursuant to

(b)(1)(B) and Local Rule 302. 20 On April 4, 2025, the Magistrate Judge filed Findings and Recommendations 21 herein which were served on all Parties and which contained notice to all Parties that 22 any objections to the Findings and Recommendations were to be filed within fourteen 23 days. (ECF No. 16.) Defendants filed timely Objections to the Findings and 24 Recommendations. (ECF No. 19.) Plaintiff subsequently filed Objections to 25 Defendants’ Objections. (ECF No. 20.) 26 In accordance with the provisions of

(b)(1)(C) and Local Rule 27 304, this Court has conducted a de novo review of this case. Having carefully 28 reviewed the entire file, the Court finds the Findings and Recommendations to be 1 supported by the record and by proper analysis. Accordingly, the Court will adopt the 2 Findings and Recommendations in full. 3 In particular, the Court agrees with the Magistrate Judge’s finding that 4 Defendants Alvarez, McCambridge, and Muslim’s joinder in Defendant Martinez’s 5 removal was untimely. As the Magistrate Judge reasoned, 6 [D]efendants S. McCambridge and G. Alvarez received the summons and complaint via email on August 16, 2024, and 7 [D]efendant M. Muslim received the summons and complaint via email on August 19, 2024. The mandatory 30- 8 day statutory time period for removal is calculated from the last-served defendant based on the date of their actual 9 receipt, which was defendant M. Muslim on August 19, 2024, making the 30-day deadline for removal September 18, 10 2024. Because [D]efendants S. McCambridge, G. Alvarez and M. Muslim did not join in the notice of removal until 11 October 4, 2024, their joinder is untimely and [P]laintiff’s motion for remand should be granted. 12 13 (ECF No. 16 at 6.) 14 Defendants contest that their joinder was untimely, explaining that the litigation 15 coordinator at Sacramento State Prison, Solano, did not receive the service of process 16 for Defendants McCambridge, Alvarez, and Muslim until after they received the 17 service of process for Defendant Martinez, and only emailed a courtesy copy of 18 Defendant Martinez’s service package to Defendants Alvarez, McCambridge, and 19 Muslim on August 16 and 19, 2024. (ECF No. 19 at 2–3.) Thus, Defendants 20 McCambridge, Alvarez, and Muslim argue they did not receive the service of process 21 pertaining to them on those dates, which was insufficient to trigger the removal 22 period. (Id.) 23 The Court disagrees. Section 1446 is clear that each defendant has “30 days 24 after receipt by or service on that defendant of the initial pleading or summons . . . to 25 file the notice of removal.”

(b)(2)(B). Under Federal Rule of Civil 26 Procedure 4(e), a plaintiff may serve an individual by (1) following state law service 27 requirements, or (2) effecting service by (A) delivering a copy of the summons and 28 complaint to the individual personally, (B) leaving a copy of each “at the individual’s 1 dwelling or usual place of abode,” or (C) delivering a copy of each to an “agent 2 authorized by appointment or by law to receive service of process.” Fed. R. Civ. P. 3 4(e). Here, Plaintiff provided proofs of service of summons confirming that all four 4 Defendants were served on the same day—August 13, 2024—by the same method— 5 personal delivery to an authorized agent of the California Department of Corrections 6 and Rehabilitation. (ECF No. 4 at 3, 7–10.) Defendants McCambridge, Alvarez, and 7 Muslim also each attested that they received an email from the litigation coordinator 8 on either August 16 or 19 stating that they were named in the lawsuit and attaching a 9 copy of the summons and complaint directed to Defendant Martinez. (ECF Nos. 13, 10 15.) Thus, Defendants McCambridge, Alvarez, and Muslim were properly served and 11 received actual notice of the action against them by August 19, 2024, at the latest. 12 Accordingly, the Court agrees with the Magistrate Judge that those Defendant’s 13 joinder on October 4, 2024, was untimely. 14 The Court also agrees with the Magistrate Judge that the belated consent and 15 joinder filed by Defendants McCambridge, Alvarez, and Muslim on October 4, 2024, 16 did not cure the timeliness issue. (ECF No. 16 at 6–7.) As the Magistrate Judge noted, 17 in Destfino v. Reiswig,

(9th Cir. 2011) the Ninth Circuit concluded 18 that “a district court may allow the removing defendants to cure the defect [in the 19 removal procedure] by obtaining joinder of all defendants prior to the entry of a 20 judgment.” (Id. at 6.) However, as the Magistrate Judge also noted, Destfino was 21 decided before the 2011 amendments to the removal statute,

, 22 became effective and codified the rule of unanimity that all defendants must consent 23 to removal within 30 days of service. (Id. at 7.) Accordingly, “[b]ecause the removal 24 statute is strictly construed, and doubts regarding the court’s jurisdiction are resolved 25 in favor of remand,” the Magistrate Judge joined with other district courts that have 26 found that procedural defects to removal cannot be cured after the 30-day removal 27 period has run. (Id. (quoting Hauss v. Home Depot USA, Inc., No. 2:23-cv-01138-KJM- 28 JDP,

, at *2 (E.D. Cal. Aug. 22, 2023)).) 1 Defendants argue some district courts have allowed procedural defects in 2 | removal to be cured after the 30-day deadline even after the 2011 amendments, 3 || citing Reger v. Mountain Lifeflight Inc., No. 2:11-CV-03301-JAM,

, at 4 | *4(E.D. Cal. Apr. 17, 2012) and Smith v. Furniture Deals, Inc., No. 1:19-CV-1557 AWI 5 | EPG,

, at *5 (E.D. Cal. Jan. 28, 2020). (ECF No. 19 at 3-4.) The Court 6 | acknowledges that there appears to be a split of authority, as the Ninth Circuit has not 7 || weighed in on this issue since Destfino. That said, the Court does not find the cases 8 || cited by Defendants to be persuasive, as they neither discuss the impact of the 2011 9 | amendments, nor do they consider the approach adopted by other district courts. 10 | Rather, this Court has surveyed the caselaw and agrees with the Magistrate Judge that 11 | “[s]ince the unanimity rule has been codified, most courts strictly construe the statute 12 | to require that any cure in a procedural defect must happen before the 30-day 13 | removal period expires.” Jarjour v. Nationstar Mortg. LLC, No. 2:25-cv-29-BJR, 2025 14 | WL 1106200, at *5 (W.D. Wash. Apr. 14, 2025) (collecting cases); accord Hauss, 2023 15 | WL 5382164, at *2 (joining with other district courts that have found procedural 16 | defects in removal cannot be cured after the 30-day removal period has run). The 17 | Court agrees, and adopts the reasoning in these cases. 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. The Findings and Recommendations (ECF No. 16) are ADOPTED in full; 20 2. Plaintiff's Motion to Remand (ECF No. 4) is GRANTED; and 21 3. The Clerk of the Court is directed to remand this action to the Sacramento 22 County Superior Court, Case No. 24CV008509, and to close this case. 23 IT IS SO ORDERED. 25 | Dated: _ July 14, 2025 “Daniel CoD batt Hon. Daniel Lt Cod 26 UNITED STATES DISTRICT JUDGE 27 28

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