Harrell v. California State University

Background

On August 9, 2023, the court denied Joshua Harrell’s motion to remand, meaning his request to return the action to the Santa Clara County Superior Court. Harrell then sought permission to file a motion asking the court to reconsider that interlocutory order, or, alternatively, certification of the order for immediate appeal.

Reconsideration request

Under the Northern District of California’s local rules, a party must obtain permission before filing a motion to reconsider an interlocutory order. The party must identify a material difference in fact or law that could not reasonably have been known earlier, new material facts or a change in law, or a manifest failure to consider material facts or dispositive legal arguments.

Harrell argued that the court had failed to consider several dispositive legal arguments. The court rejected that contention. It said it had considered and rejected Harrell’s arguments that Claims 9 and 10 were not removable and were so connected to his other claims that the entire action should be remanded. The court specifically noted that it had considered Harrell’s argument that 28 U.S.C. § 1445 does not provide an exhaustive list of nonremovable actions and had declined to accept his contention that the Tenth Amendment made Claims 9 and 10 nonremovable because he had not cited supporting case law. The court also said that the defendants had addressed all relevant arguments in their opposition.

The court denied Harrell’s motion for leave to file a motion for reconsideration.

Request for immediate appeal

The court explained that denial of a motion to remand is not ordinarily a final order appealable under 28 U.S.C. § 1291. Harrell asked the court either to certify the remand order for interlocutory appeal under 28 U.S.C. § 1292(b) or to certify it as final under Federal Rule of Civil Procedure 54(b).

For an interlocutory appeal, § 1292(b) requires a controlling legal question, substantial ground for disagreement about that question, and an immediate appeal that would materially advance the ultimate termination of the litigation. The court found that Harrell’s argument about the removability of Claims 9 and 10 presented a controlling legal question, but concluded that he had not shown substantial ground for disagreement. The court also found that an appeal would not materially advance the litigation because a ruling in Harrell’s favor would sever and remand Claims 9 and 10 while the rest of the action continued in federal court. The court declined to certify the remand order for interlocutory appeal.

Under Rule 54(b), a court may direct entry of final judgment on fewer than all claims or parties only when the order is a final judgment and the court expressly determines that there is no just reason for delay. The court concluded that its remand order was not a final judgment because it did not finally dispose of any of Harrell’s claims. It also found that Harrell had not established that there was no just reason for delay. The court declined to certify the remand order as a final judgment under Rule 54(b).

Disposition

Judge Beth Labson Freeman denied Harrell’s motion for leave to file a motion for reconsideration or, alternatively, to certify the denial of remand for immediate appeal. The order terminated ECF 26.