Li v. Mummah

Background

Scott A. Flaxman sought to remove Phillip Mummah’s cross-claim against him from Santa Clara County Superior Court to the U.S. District Court for the Northern District of California. On December 9, 2022, the court issued an Order to Show Cause, which required Flaxman to explain why the matter should not be sent back to the Superior Court under the federal removal statute, 28 U.S.C. § 1441, and the Supreme Court’s decision in Home Depot, U.S.A. v. Jackson. The court noted that an order sending a case back to state court may require payment of certain costs and actual expenses, including attorney fees, caused by the removal.

Flaxman responded with a brief, exhibits, and a second brief. The court stated that he could not file additional briefs responding to the Order to Show Cause without further permission.

Orders to the Parties

The court ordered Mummah to respond to the removal and the Order to Show Cause by December 20, 2022. Mummah was specifically directed to address whether he waived any defect in the removal and preferred to litigate the cross-claim in federal court, and whether he supported or opposed Flaxman’s request to sever, or separate, the cross-claim.

The court also explained that a magistrate judge may conduct all proceedings in a civil case only when all parties consent under 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(a). Flaxman had consented, but the record did not show consent by all parties. The court therefore asked Li and Mummah each to file a form stating whether they consented to or declined magistrate-judge jurisdiction by December 20, 2022.

Disposition

Judge Nathanael Cousins stated that the court would wait for the requested filings before taking further action on Flaxman’s removal. This order did not resolve the removal question, order a remand, or decide whether the cross-claim would be severed.