Herrera v. County of San Benito
- Nathanael Cousins
- 5:24-cv-01133
- U.S. District Court · Northern District of California
- 2
In Herrera v. County of San Benito, Judge Cousins ordered a joint statement on whether Herrera waived an apparent deadline problem in the County’s removal.
Rosario Herrera and the County of San Benito, because the court required them to address whether Herrera waived an objection to the apparently late removal.
What happened
Rosario Herrera sued the County of San Benito in state court. Her amended complaint included claims under a federal civil-rights statute. The County removed the case to federal court 36 days after Herrera supposedly served the amended complaint, asserting that the federal claims created federal-question jurisdiction.
The court said the removal appeared to be late under the federal removal deadline. Because the County said Herrera had agreed to removal if the required procedures were followed, the court ordered both sides to file a joint statement addressing whether Herrera had waived the deadline objection. The statement was due March 1, 2024.
In Herrera v. County of San Benito, Judge Nathanael M. Cousins issued an order requiring the parties’ joint statement. The opinion does not decide whether the removal was timely, whether Herrera waived the objection, or whether the case will remain in federal court.
The detailed version
- Herrera v. County of San Benito · No. 5:24-cv-01133
- Nathanael Cousins
- Feb. 26, 2024
Background
Rosario Herrera filed suit against the County of San Benito in state court. Her first amended complaint included several causes of action, including claims under 42 U.S.C. § 1983. The opinion states that Herrera purportedly served the amended complaint on or about January 18, 2024.
The County removed the case to federal court on February 23, 2024—36 days after the stated service date. The County based removal on the presence of a federal question. Federal law generally sets a deadline for removal, and the court said the removal appeared untimely under 28 U.S.C. § 1446(b).
Issue
The court focused on whether the apparent untimeliness objection had been waived. The County represented that Herrera had consented to removal “so long as the procedural aspects were met.” The court noted that this statement raised a question about whether Herrera had waived the deadline objection.
Order
The court ordered the parties to file a joint statement addressing whether Herrera waived the objection to the allegedly late removal. The statement had to be filed by March 1, 2024.
This order did not decide whether the removal was timely, whether Herrera waived the objection, whether the federal court had jurisdiction, or whether the case would remain in federal court. Judge Nathanael M. Cousins signed the order as a United States Magistrate Judge.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.