Becerra v. Allstate Northbrook Indemnity Company
- Proceeding
- district
- Area
- civil
- Panel
- Cynthia Ann Bashant (author)
Analysis
The court reviewed the procedural status of a removed insurance action where the defendant had filed a state court demurrer but no federal answer. The court ordered the defendant to file a responsive pleading to the complaint by April 18, 2022.
| What the court decided | The model |
|---|---|
Defendant is ordered to answer or otherwise respond to the Complaint by no later than April 18, 2022.“Defendant is ORDERED to answer or otherwise respond to the Complaint by no later than April 18, 2022.” | agree with court The court correctly applied Federal Rule of Civil Procedure 81(c)(2), which requires a defendant who has not answered a complaint prior to removal to file a responsive pleading within the longest of the specified time periods. The court correctly identified that a state court demurrer does not constitute an 'answer' under federal rules, citing relevant district court precedent. Since the time periods had elapsed, the order to respond is procedurally sound. |
The order itself: sound — The order is procedurally sound. It correctly identifies the applicable rule (Rule 81(c)(2)) and the factual premise (defendant filed a demurrer, not an answer, prior to removal). It relies on appropriate district court precedent to establish that a demurrer does not satisfy the federal requirement for an answer. The conclusion that the defendant must now respond follows logically from the rule and the facts.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEFANIE BECERRA, Case No. 22-cv-0202-BAS-MSB 12 Plaintiff, ORDER DIRECTING DEFENDANT 13 v. TO RESPOND TO COMPLAINT
14 ALLSTATE NORTHBROOK
INDEMNITY COMPANY, 15 Defendant. 16 18 Defendant removed from the Superior Court of the State of California for the County 19 of San Diego the instant action on February 14, 2022. (Notice of Removal, ECF No. 1; 20 Compl., Ex. A to Notice of Removal, ECF No. 1-2.) 21 It is well-settled that upon arrival in federal court, a complaint in state court becomes 22 subject to the Federal Rules of Civil Procedure (“Rules”) as though it had been initially 23 filed in federal district court. See Labertew v. Langemeier, 846 F.3d 1028 (9th Cir. 2017); 24 but see Istituto Per Lo Sviluppo Economico Dell’ Italia Meridonale v. Sperti Prods., Inc., 25 47 F.R.D. 310, 312–13 (S.D.N.Y. 1969) (“Only pleadings filed subsequent to removal must 26 conform to the requirements of the federal rules.”). As a general matter, the Rules “do not 27 require repleading when an action is removed from state court.” Lally v. Allstate Ins. Co., 28 724 F. Supp. 760, 763 (S.D. Cal. 1989); see Rule 81(c)(1) (“After removal, repleading is 1 ||unnecessary unless the court orders it.”). However, where the defendant did not answer 2 ||the complaint prior to removal, the defendant must “answer or present other defenses or 3 || objections under these [R]ules” either “(A) 21 days after receiving—through service or 4 || otherwise—a copy of the initial pleading stating the claim for relief; (B) 21 days after being 5 || served with the summons for an initial pleading on file at the time of service; or (C) 7 days 6 || after the notice of removal is filed,” whichever period is longest. 7 Here, Defendant did not file an answer to the state court complaint, but instead filed 8 |}a demurrer on October 26, 2021, in state court. (Demurrer to Compl., Ex. C to Notice of 9 || Removal, ECF No. 1-4.) A demurrer is not equivalent to an “answer” in federal court for 10 || purposes of Rule 81(c)(2). See, e.g., Great Am. ins. Co. v. Air New Zealand Ltd., No. 2:19- 11 || cv-3324-AB-MRWx, 2019 WL 7971888, at *3 (C.D. Cal. Oct. 22, 2019) (citing Witkowsky 12 Home Depot, U.S.A., Inc., No. 09-06486, 2009 WL 10673595, at *3 (C.D. Cal. Dec. 30, 13 |}2009)). Hence, the Rules mandate that Defendant file a responsive pleading in the instant 14 || proceeding. Because each of the periods to respond to the Complaint specified in Rule 15 81(c)(2) have elapsed without Defendant’s submission of a responsive pleading, Defendant 16 ||is ORDERED to answer or otherwise respond to the Complaint by no later than April 17 |} 18, 2022. 18 IT IS SO ORDERED. 19 || DATED: March 29, 2022 ( itl A (Liphan 6 20 United States District Judge 21 22 23 24 25 26 27 28
Cites, in this corpus
- Lally v. Allstate Ins. Co. 88-1876-GT(BTM) · 1989-08-31