Ettlin v. Harris

No. SACV 13-1515-DOC (JPRx), 2013 U.S. Dist. LEXIS 170526 (C.D. Cal. Nov. 22, 2013)



The rule on summary judgment does not vest in the court the jurisdiction to summarily try the factual issues on the affidavits and depositions of the parties, but vests in the court the limited authority to enter summary judgment only if it clearly appears that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The complete absence of any genuine issue must be apparent and all doubts thereon must be resolved against the moving party.


Plaintiff participated in protest events near the city hall as part of the national “Occupy” movement. As he was leaving the scene, police officers ordered the protesters to gather on one spot. Fearing arrest, plaintiff moved on the other direction then left the scene. He then filed suit against several individuals, including the Attorney General, judges, and the Los Angeles County Supervisors, for alleged federal civil rights violations, federal racketeering (RICO) violations, and related state law claims. The county supervisors removed the suit to federal court without the consent of the other defendants. Under the unanimity rule of 28 U.S.C. § 1446, if an action is removed pursuant to 1441(a), all defendants must consent to the removal. Plaintiff filed a motion to remand the suit to state court based on the lack of unanimous consent among the defendants. Defendants argued that that they were not bound by the rule of unanimity because they removed the state court action under 28 U.S.C. § 1441(c), not "solely under Section 1441(a)."


Whether plaintiff’s action against several defendants may be removed to federal court without the consent of all the defendants.




The court stated that the present rule makes clear that an action is removable under 1441(c) only if there is at least one claim that is "not within the original or supplemental jurisdiction of the district court." In this case, all of the claims of the plaintiff fall within the district court’s original jurisdiction, thus cannot be removed under 1441(c). Neither was the action properly removed under Section 1441(a) since the rule under this section requires that all defendants must consent to such action.

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