Li v. Mummah
- Nathanael Cousins
- 5:22-cv-07626
- U.S. District Court · Northern District of California
- 3
In Li v. Mummah, Judge Cousins ordered Scott A. Flaxman to explain why his removal should not be sent back to state court.
Scott A. Flaxman, the cross-defendant who removed the action, was required to respond. The plaintiff and defendant could be affected if the court later remanded the case to state court.
What happened
Li v. Mummah began in state court, and cross-defendant Scott A. Flaxman removed the action to federal court on December 3, 2022. The federal court questioned whether that removal was allowed.
The court said a cross-defendant cannot remove under the Supreme Court’s decision in Home Depot, U.S.A. v. Jackson. It also said Flaxman tried to remove only part of the action, filed more than 30 days after the removal period began, and did not provide all required case documents.
The court ordered Flaxman to show cause—explain—by December 23, 2022, why the case should not be remanded to state court. Judge Nathanael M. Cousins did not remand the case in this order but said the court might do so if Flaxman did not respond.
The detailed version
- Li v. Mummah · No. 5:22-cv-07626
- Nathanael Cousins
- Dec. 9, 2022
Background
Cross-defendant Scott A. Flaxman removed the case to federal court on December 3, 2022. The order identifies Flaxman as the person who filed the notice of removal and refers to him as a cross-defendant. The court issued an order to show cause, which required Flaxman to explain why the case should not be returned, or remanded, to state court.
Why the Court Questioned Removal
The court gave three reasons for questioning the removal:
1. A cross-defendant’s removal: Relying on the Supreme Court’s decision in Home Depot, U.S.A. v. Jackson, the court said the general federal removal statute does not allow a third-party defendant to remove a case. The court concluded that Flaxman, whom it described as a cross-defendant, could not remove under that rule.
2. Removing only part of the action: The court said that even if a cross-defendant could remove, 28 U.S.C. § 1446 allows removal of an entire action, not only a selected cross-claim.
3. Failure to meet removal requirements: Section 1446(a) requires a notice of removal to include copies of the process, pleadings, and orders served on the removing party. The court said Flaxman did not provide those materials. The court also concluded that the removal was untimely under § 1446(b)(1). Based on the notice of removal, the court understood that the 30-day period began no later than October 28, 2022, making the December 3 removal more than 30 days late.
Ruling
The court ordered Scott A. Flaxman to show cause by December 23, 2022, why the case should not be remanded to state court. It stated that it might remand the case at that time if he did not respond. This order did not itself remand the case. The order also referenced possible expenses, including attorney fees, incurred because of the removal.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.