United States District Court, W.D. Washington, Tacoma
DONALD W. WRIGHT, Plaintiff,
STATE OF WASHINGTON DEPARTMENT OF CORRECTIONS, et al., Defendants.
ORDER DENYING MOTIONS TO REMAND AND TO WITHDRAW
RICHARD CREATURA, UNITED STATES MAGISTRATE JUDGE
who is incarcerated and proceeds pro se, brought
this matter in state court, alleging violations of 42 U.S.C.
§ 1983 and the Washington State Constitution.
See Dkt. 1-2. Defendant removed the case to federal
court, and the District Court has referred the case to the
undersigned. See Dkt. 4. Before the Court are
plaintiff's Motion To Remand (Dkt. 9) and Motion To
Withdraw Complaint from United [States] District Court
Without Prejudice (Dkt. 10). Because this Court has original
or supplemental jurisdiction over all of plaintiff's
claims, his case was properly removed and his motions are
alleges that defendants-the Department of Corrections
(“DOC”) and various DOC employees-targeted him on
the basis of litigation that he had filed and took actions
including transferring him without his property, withholding
his legal documents, and sabotaging his typewriter.
See Dkt. 1-2, at 4-6. He alleges that these actions
were federal constitutional violations under 42 U.S.C. §
1983, constituted the tort of outrage, and violated the state
constitution. See Dkt. 1-2. Defendants removed this
matter to federal court on the basis of plaintiff's
claims under § 1983. See Dkt. 1, at 2.
then sent a letter to this Court, which the Clerk docketed as
a motion to remand. See Dkt. 9. Plaintiff objected
to the removal and provided this Court with his state court
notice of appeal regarding the removal. See Dkt. 9,
at 1. He requested a stay of this matter until the state
court of appeals ruled on his appeal. See Dkt. 9, at
2. Plaintiff also filed a “Motion To Withdraw
Complaint, ” which appears to be a request to remand
the case to state court. See Dkt. 10, at 2.
Defendant has responded to the motion to
“withdraw” the complaint, and these matters are
ripe for decision. See Dkt. 15.
objects to removal to this Court for a litany of reasons,
including that removal was improper, that he did not receive
adequate notice, and that defendants waived their ability to
remove by litigating in state court. See Dkt. 9. He
also requests a stay of this matter while he appeals the
removal in state court. See Dkt. 9, at 11.
plaintiff's objections, this Court has jurisdiction over
plaintiff's claims under 42 U.S.C. § 1983 pursuant
to 28 U.S.C. § 1331, which provides for original
jurisdiction over all civil actions arising under the laws
and Constitution of the United States. Moreover, this Court
has supplemental jurisdiction over plaintiff's state law
claims, which are based on the same underlying events and
form part of the same case or controversy under 28 U.S.C.
§ 1367. Removal was also timely accomplished, as
defendants filed the notice of removal within 30 days of
service of the complaint. See 28 U.S.C. §
1446(a); Dkt. 3, at 1-2.
appears to assert that removal was defective because he did
not receive any notice of removal. See Dkt. 9, at 1.
To the contrary, defendants have shown that they provided
written notice of the removal as required by 28 U.S.C. §
1446, thereby satisfying the requirement of giving notice to
plaintiff. See Dkt. 1, at 3.
argument that defendants consented to superior court
jurisdiction is not well-founded, either, as the portion of
defendants' answer relied upon by plaintiff clearly
references federal, not state, court jurisdiction.
See Dkt. 7, at 2. Plaintiff additionally argues that
defendants consented by appearing in state court, in
particular when they filed a motion in state court objecting
to plaintiff's motion for waiver of service. See
Dkt. 3-2, at 132. However, at that stage, defendants'
opposition to plaintiff's motion for waiver of service
was neither clear and unequivocal action waiving the right to
remove nor the type of litigation on the merits that could
functionally waive the right to remove. See Resolution
Trust Corp. v. Bayside Developers, 43 F.3d 1230, 1240
(9th Cir. 1994). Indeed, defendants' appearance in state
court specifically preserved any objection to jurisdiction.
See Dkt. 3-2, at 21. Thus, the Court declines to
find that defendants waived their ability to remove the case.
plaintiff's request for a stay of this matter pending his
state court appeal of the removal (see Dkt. 9, at
11), jurisdiction over this case belongs in federal court now
that the case has properly been removed. See 28
U.S.C. § 1446 (“[T]he State court shall proceed no
further unless and until the case is remanded.”);
see also Resolution Trust Corp., 43 F.3d at 1238
(noting that the state court loses jurisdiction upon filing
of the petition for removal). Because jurisdiction now lies
in this Court, a challenge to removal is appropriate by way
of a motion to remand in this Court, not an appeal of the
removal in state court. See 28 U.S.C. §
1447(c). Denial of such a motion by the undersigned is, of
course, subject to review by the District Court and the Ninth
Circuit. See 28 U.S.C. § 636(b)(1)(A); Lee
v. Am. Nat. Ins. Co., 260 F.3d 997, 1000 (9th Cir.
2001). This Court therefore declines to stay this matter in
light of plaintiff's claim that he is appealing the
removal in state court, as state court is not the appropriate
forum for such a request.
these reasons, plaintiff's motion to remand (Dkt. 9),
including his request to stay the matter, and motion to