Biesenbach v. City and County of San Francisco
- Donna Ryu
- 4:23-cv-03423
- U.S. District Court · Northern District of California
- 5
Biesenbach v. City and County of San Francisco: Judge Ryu remanded the case because a properly served defendant did not consent to removal.
Klaus Biesenbach and the defendants were affected: the case was returned to San Francisco County Superior Court, and the federal case was closed.
What happened
In Biesenbach v. City and County of San Francisco, Klaus Biesenbach, representing himself, sued several defendants in San Francisco County Superior Court. His claims included negligence, a California civil-rights claim, a California victims’-rights claim, a federal due-process claim, and assault and battery.
The City Defendants moved the case to federal court, saying federal jurisdiction existed. Biesenbach asked the federal court to send it back to state court. The court found that Pilsner Inn had been properly served before removal but had not joined or consented to the move to federal court.
The court granted Biesenbach’s motion to remand and closed the case without deciding whether the complaint raised a federal question. Judge Donna M. Ryu issued the order.
The detailed version
- Biesenbach v. City and County of San Francisco · No. 4:23-cv-03423
- Donna Ryu
- Oct. 18, 2023
Background
Klaus Biesenbach, who represented himself, filed the action in San Francisco County Superior Court against the City and County of San Francisco, the San Francisco Police Department, Adult Protective Services, the San Francisco Housing Authority, and Pilsner Inn. The complaint asserted negligence, violation of California Civil Code section 52.1 (the Bane Act), violation of Marsy’s Law, violation of federal due process against the San Francisco Housing Authority, and assault and battery.
The City Defendants removed the case to federal court based on federal jurisdiction. The notice of removal stated that Pilsner Inn had not appeared or been served. Biesenbach submitted proof showing that Pilsner Inn had been personally served on June 29, 2023, before the July 10, 2023 removal. Pilsner Inn did not join the removal or consent to it. The San Francisco Housing Authority later joined the City Defendants’ opposition to the motion to remand, but it had not joined the notice of removal.
Legal standard
Federal law permits removal when a case could originally have been filed in federal court. The removing defendants bear the burden of showing that removal was proper, and removal procedures are strictly enforced. All properly served defendants generally must join the removal. If a properly served defendant does not join, the removing defendants must explain that absence and may sometimes cure the defect before judgment.
Court’s analysis
The court held that the notice of removal was procedurally defective because Pilsner Inn had been properly served before removal and had not consented. The City Defendants argued that they had exercised reasonable diligence by reviewing the state-court online docket and had not learned that Pilsner Inn was served. The court rejected that argument, finding that the City Defendants had taken only minimal steps to determine whether Pilsner Inn had been served and had not exercised due diligence.
Because the court found the removal procedurally defective, it did not decide whether the complaint asserted a federal question.
Disposition
The court granted Biesenbach’s motion to remand the case to San Francisco County Superior Court and closed the federal case.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.