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Michelle A. Welsh, SBN 84127
STONER, WELSH & SCHMIDT
413 Forest A venue
Pacific Grove, CA 93950-4201
Telephone: 831-373-1993
Facsimile: 831-373-1492
Email: MA W@stonerwelsh.com
6 Attorneys for Plaintiff, Steven Mclnchak
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
STEVEN MciNCHAK
PETITIONER/Plaintiffs
v.
CITY OF CARMEL-BY-THE-SEA, JASON
STILWELL, CITY ADMINISTRATOR OF
THE CITY OF CARMEL BY-THE-SEA,
SUSAN PAUL, ADMINISTRATIVE
SERVICES DIRECTOR OF THE CITY OF
CARMEL BY-THE-SEA; AND DOES 1-50,
inclusive,
Defendants.
CASE NO: 5:14-CV-03084 (HRL)
Hearing Date: September 30, 2014
Hearing time: 10:00 am
Monterey County Superior Court
Case No: M128062
NOTICE OF MOTION AND MOTION TO
REMAND CASE TO STATE COURT
Action Filed: June 4, 2014
Discovery Cutoff: Not Set
Trial Date: Not Set
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
NOTICE IS HEREBY GIVEN that pursuant to 28 USC 1447 on September 30,2014 at
10:00 a.m. or as soon thereafter as the matter may be heard in Courtroom 2 of the above entitled
court, located at 280 S. First Street, 5th Floor, San Jose, California, 95113. Plaintiff Steven
Mcinchak will move this court for an order remanding the above-entitled matter to the Superior
Court of California, Monterey County.
The motion is made on the ground that the court does not have subject matter jurisdiction
over the causes of action alleged in this complaint because there is no federal question presented.
NOTICE OF MOTION AND MOTION TO REMAND CASE TO STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
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The motion is based on this notice of motion, and the accompanying memorandum of
points and authorities served and filed herewith, the papers and records on file herein, and on such
other oral and documentary evidence as may be presented at the hearing of the motion.
Dated: :T 3 f '2014
STONER, WELSH & SCHMIDT
        ~   c::: ~ ~ ~
Michelle A. Welsh
Attorneys for Petitioner/Plaintiff, STEVEN MciNCHAK
NOTICE OF MOTION AND MOTION TO REMAND CASE TO STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
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Case5:14-cv-03084-RMW Document9-1 Filed08/01/14 Page1 of 6
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Michelle A. Welsh, SBN 84127
STONER, WELSH & SCHMIDT
413 Forest A venue
Pacific Grove, CA 93950-4201
Telephone: 831-373-1993
Facsimile: 831-373-1492
Email: MA W@stonerwelsh.com
6 Attorneys for Plaintiff, Steven Mcinchak
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
STEVEN MciNCHAK
PETITIONER/Plaintiffs
v.
CITY OF CARMEL-BY-THESEA, JASON
STILWELL, CITY ADMINISTRATOR OF
THE CITY OF CARMEL BY-THE-SEA,
SUSAN PAUL, ADMINISTRATIVE
SERVICES DIRECTOR OF THE CITY OF
CARMEL BY-THE-SEA; AND DOES 1-50,
inclusive,
Defendants.
CASE NO: 5:14-CV-03084 (HRL)
Hearing Date: September 30, 2014
Hearing Time: 10:00 am
Monterey County Superior Court
Case No: M128062
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
MOTION TO REMAND CASE TO STATE
COURT
Action Filed: June 4, 2014
Discovery Cutoff: Not Set
Trial Date: Not Set
I. STATEMENT OF ISSUES TO BE DECIDED.
A. Whether This Case Should Be Remanded To State Court Because It
Does Not Allege Any Claim Arising Under The Constitution, Treaties
Or Laws Of The United States?
"Federal question jurisdiction ... exists only if plaintiff's right to relief depended necessarily
on a substantial question of federal law." Merrell Dow Pharmaceuticals Inc., v. Thompson, 478 U.S.
804, 807 (1986). Plaintiff's complaint does not plead any violations of federal law. The complaint
seeks plaintiff's reinstatement to his job with the City of Carmel, after he was placed on
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
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administrative leave without cause and without due process of law secured "by Article I, Section 2 o
the Constitution of the State of California ... " Complaint, page 2, second paragraph. "Further, the
City's actions violated Petitioner/plaintiffs right to privacy and impaired Petitioner/Plaintiffs vested
contractual rights in violation of the Constitution of the State of California at Article I, Section 9. The
City also violated its own Ordinances." Id. The complaint also alleges that the City and its agents
"have instituted a pattern and practice of discrimination based on age causing a disparate impact on
older employees which is continuing in violation of California law" (the California Fair Employment
and Housing Act.) Complaint, page 7, 116. The complaint also alleges defendants defamed him in
violation of California Civil Code Sections 45 and 46(1), (2) and (5). Complaint, page 12, ,37. The
Complaint alleges intentional and negligent infliction of emotional distress (pages 14 and 15) and an
action for declaratory relief and reinstatement to his position pursuant to California Code of Civil
Procedure Section 1060 and "the Constitution and laws of the State of California." Complaint, page
17, lines 2 and 3.
There is only one passing reference to "unlawful conduct in violation of California and federal
law, and the California and United States Constitutions" in the context of alleging arbitrary and
capricious conduct by Defendants to support an award of attorneys' fees under California Law, at
Government Code section 800. Complaint, page 7, par. 18. The Complaint identifies no specific
federal law or provision of the United States Constitution that provides plaintiff any relief. The
complaint invokes no federal statutory or Constitutional right. Consequently, this case does not "arise
under" federal law and should be remanded to state court. See Franchise Tax Board v. Construction
Laborers Vacation Trust, 463 U.S. 1 (1983).
B. ARGUMENT.
A. Removal of Cases Involving a Federal Question
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
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Federal courts have limited jurisdiction to hear only those cases specified by the Constitution
or the Congress. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994). 28 USC
Section 1441(a) authorizes removal of civil actions within the original jurisdiction of
the federal district courts. Section 1441 (b) reads, in part:
Any civil action of which the district courts have original jurisdiction founded on a claim or
right arising under the Constitution, treaties or laws of the United States shall be removable without
regard to the citizenship or residence of the parties. 28 U.S.C. § 1441(b).
This section 1441 (b), "arising under the Constitution, treaties, or laws of the United States," is
nearly identical to the language "arises under the Constitution, laws, or Treaties of the United States,"
which is u ~ e   in Section 1331 of Title 28, conferring federal question jurisdiction on the federal
courts. Therefore, it is appropriate to follow the general principles governing federal question
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. jurisdiction when determining removal jurisdiction. Page v. Tri-City Healthcare Dist., 860 F. Supp.
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2d 1154 (S.D. Cal. 2012).
Removal is proper only when a right created by the Constitution, a treaty, or other federal law
is an essential element of the plaintiff's properly pleaded claim for relief. Lippitt v. Raymond James
Financial Services, Inc., 340 F.3d 1033 (9th Cir. 2003). In this case, neither federal law nor the U.S.
Constitution is a necessary element of plaintiff's claims.
B. Definition of "Arising Under"
Article III, Section 2, of the Constitution provides that the judicial power of the United States
extends to cases "arising under this Constitution, the Laws of the United States, and Treaties made, or
which shall be made, under their Authority." The meaning of "arising under" is the requirement that
the plaintiff's well-pleaded complaint use federal law that is central to the dispute. Empire
Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 699 (2006).
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
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Plaintiff pleads no specific federal law or Constitutional provision as the basis for any claim.
The complaint reads: "This action is brought to enforce the mandatory requirements of the Ordinances
and Personnel System of the City of Carmel-by-the-Sea, the Constitution and laws of the State o
California, and the mandatory duties of the City Council, the City Administrator and the City Human
Resources Director arising under those laws." Pleading: Preliminary Statement 1: 26-28. All seven
causes of action plead State based claims. Not a single cause of action is based on any federal law.
C. The Complaint Pleads No Substantial Federal Question
Federal jurisdiction requires that a federal question be a substantial part of the case. The
substantiality requirement does not refer to the value of the interests that are at stake but to whether
there is any legal substance to the position the may be plainly unsubstantial, either because it is
'obviously without merit' or because previous court decisions render it unsound and it cannot be
inferred that the federal question is the subject of controversy. A pleading that does not specify what
laws were violated could be dismissed for failure to state a claim.
In Rains v. Criterion Systems, Inc., 80 F.3d 339 (1996) the court held the district court had no
jurisdiction over a case where the plaintiff pled language similar to the complaint pled here but more
specifically mentioning Title VII.
Rains' complaint states at the outset that it arises under "the laws of the United States (42 ·
U.S.C. 2000(e)-2) [Title VII], the laws of the State of California, (Gov.Code § 12940 et seq.),
the rules, regulations, and directives implementing said statutes and common law. While the
reference to the laws of the United States and specifically to Title VII suggests that Rains
might be asserting at least one federal cause of action, the actual causes of actions stated in the
complaint all sound in state law. Rains v. Criterion Systems, Inc., 80 F.3d 339, 343 (9th Cir.
1996).
Rains held the direct and indirect references to Title VII in those his state law causes of action
do not make those claims into federal causes of action. Rather, the complaint merely incorporates
Title VII as one of several similar sources of public policy supporting defendant's state law claims. Id.
In the pleading before us there is no legal theory connected to any federal statute or
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
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Constitutional provision. As in Rains, the Complaint references federal law as one of several sources
of evidence of Defendants' arbitrary and capricious conduct sufficient to support an award of
attorney's fees under California law, which can be awarded by the court only if Plaintiff prevails in his
state law claims. California Government Code section 800. That statute expressly provides at
California Government Code section 800(b ): "This section is ancillary only, and shall not be
construed to create a new cause of action". Each cause of action stated in the Complaint arises from
California statutes and Constitutional provisions. Each cause of action is independent from any
federal right or authority. Each is complete in and of itself without having to resort to federal law to
obtain relief. Even where a claim can be supported by alternative and independent theories-one of
which is a state law t h   o r ~ and one of which is a federal law theory-federal question jurisdiction
does not attach unless federal law is an essential element of each claim. Christianson v. Colt
Industries Operating Corp., 486 U.S. 800 at 810, 108 S.Ct. 2166, at 2174, 100 L.Ed.2d 811 (1988)
D. Defendant Cites Incorrect Removal Statute
Defendant incorrectly cites to 28 U.S.C. § 1441(b) as basis for removal to federal court. §
1441(b) is for removal based on diversity. Notice of Removal Cover Page, 1: 15-21. Parties are
citizens of the same state and therefore jurisdiction cannot be granted under this statute. Removal
then is improper. Trask v. Kasenetz, 818 F. Supp. 39 (E.D. N.Y. 1993).
E. Removal is Disfavored So The Exercise Of Removal Jurisdiction Is Strictly
Construed.
Am. Fire & Cas. Co. v. Finn. 341 U.S. 6, 10, (1951). Abrego v. Dow Chern. Co., 443 F.3d
676, 685 (9th Cir. 2006). A removal statute must be strictly construed, "with all doubts and
ambiguities resolved against removal and in favor of remand." Shamrock Oil & Gas Corp. v. Sheets,
313 U.S. 100, 108 (1941).
This strong presumption against removal demonstrates that the defendant has the burden of
establishing that removal is proper. Here, defendants incorrectly cite the removal statute and also d9
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
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not properly establish jurisdiction by stating facts that prove the claims in the pleading "arise under" a
specific federal law. Any ambiguity should compel an order remanding this matter to state court.
Dated: T ) I '2014
STONER, WELSH & SCHMIDT
 
Michelle A. Welsh
Attorneys for Petitioner/Plaintiff, STEVEN MciNCHAK
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
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Case5:14-cv-03084-RMW Document9-2 Filed08/01/14 Page1 of 11
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Michelle A. Welsh, SBN 84127
STONER, WELSH & SCHMIDT
413 Forest A venue
Pacific Grove, CA 93950-4201
Telephone: 831-373-1993
Facsimile: 831-373-1492
Email: MA W@stonerwelsh.com
6 Attorneys for Plaintiff, Steven Mcinchak
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
STEVEN MciNCHAK
PETITIONER/Plaintiffs
v.
CITY OF CARMEL-BY-THE-SEA, JASON
STILWELL, CITY ADMINISTRATOR OF
THE CITY OF CARMEL BY-THE-SEA,
SUSAN PAUL, ADMINISTRATIVE
SERVICES DIRECTOR OF THE CITY OF
CARMEL BY-THE-SEA; AND DOES 1-50,
inclusive,
Defendants.
CASE NO: 5:14-CV-03084 (HRL)
Hearing Date: September 30, 2014
Hearing time: 10:00 am
Monterey County Superior Court
Case No: M128062
NOTICE OF MOTION AND MOTION TO
REMAND CASE TO STATE COURT
Action Filed: June 4, 2014
Discovery Cutoff: Not Set
Trial Date: Not Set
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
NOTICE IS HEREBY GIVEN that pursuant to 28 USC 1447 on September 30,2014 at
10:00 a.m. or as soon thereafter as the matter may be heard in Courtroom 2 of the above entitled
court, located at 280 S. First Street, 5th Floor, San Jose, California, 95113. Plaintiff Steven
Mclnchak will move this court for an order remanding the above-entitled matter to the Superior
Court of California, Monterey County.
The motion is made on the ground that the court does not have subject matter jurisdiction
over the causes of action alleged in this complaint because there is no federal question presented.
NOTICE OF MOTION AND MOTION TO REMAND CASE TO STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
Case5:14-cv-03084-RMW Document9-2 Filed08/01/14 Page2 of 11
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The motion is based on this notice of motion, and the accompanying memorandum of
points and authorities served and filed herewith, the papers and records on file herein, and on such
other oral and documentary evidence as may be presented at the hearing of the motion.
Dated: :T "t 5 l '2014
STONER, WELSH & SCHMIDT
---/u- ~ ~   0 ~
Michelle A. Welsh
Attorneys for Petitioner/Plaintiff, STEVEN MciNCHAK
NOTICE OF MOTION AND MOTION TO REMAND CASE TO STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
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Michelle A. Welsh, SBN 84127
STONER, WELSH & SCHMIDT
413 Forest A venue
Pacific Grove, CA 93950-4201
Telephone: 831-373-1993
Facsimile: 831-3 73-1492
Email: MA W@stonerwelsh.com
6 Attorneys for Plaintiff, Steven Mcinchak
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
STEVEN MciNCHAK
PETITIONER/Plaintiffs
v.
CITY OF CARMEL-BY-THESEA, JASON
STILWELL, CITY ADMINISTRATOR OF
THE CITY OF CARMEL BY-THE-SEA?
SUSAN PAUL, ADMINISTRATIVE
SERVICES DIRECTOR OF THE CITY OF
CARMEL BY-THE-SEA; AND DOES 1-50,
inclusive,
Defendants.
CASE NO: 5:14-CV-03084 (HRL)
Hearing Date: September 30, 2014
Hearing Time: 10:00 am
Monterey County Superior Court
Case No: Ml28062
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
MOTION TO REMAND CASE TO STATE
COURT
Action Filed: June 4, 2014
Discovery Cutoff: Not Set
Trial Date: Not Set
I. STATEMENT OF ISSUES TO BE DECIDED.
A. Whether This Case Should Be Remanded To State Court Because It
Does Not Allege Any Claim Arising Under The Constitution, Treaties
Or Laws Of The United States?
"Federal question jurisdiction ... exists only if plaintiffs right to relief depended necessarily
on a substantial question of federal law." Merrell Dow Pharmaceuticals Inc., v. Thompson, 478 U.S.
804, 807 (1986). Plaintiffs complaint does not plead any violations of federal law. The complaint
seeks plaintiffs reinstatement to his job with the City of Carmel, after he was placed on
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
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administrative leave without cause and without due process of law secured "by Article I, Section 2 o
the Constitution of the State of California ... " Complaint, page 2, second paragraph. "Further, the
City's actions violated Petitioner/plaintiffs right to privacy and impaired Petitioner/Plaintiffs vested
contractual rights in violation of the Constitution of the State of California at Article I, Section 9. The
City also violated its own Ordinances." Id. The complaint also alleges that the City and its agents
"have instituted a pattern and practice of discrimination based on age causing a disparate impact on
older employees which is continuing in violation of California law" (the California Fair Employment
and Housing Act.) Complaint, page 7, ~ 1 6   The complaint also alleges defendants defamed him in
violation of California Civil Code Sections 45 and 46(1), (2) and (5). Complaint, page 12, ~ 3 7   The
Complaint alleges intentional and negligent infliction of emotional distress (pages 14 and 15) and an
action for declaratory relief and reinstatement to his position pursuant to California Code of Civil
Procedure Section 1060 and "the Constitution and laws of the State of California." Complaint, page
17, lines 2 and 3.
There is only one passing reference to "unlawful conduct in violation of California and federal
law, and the California and United States Constitutions" in the context of alleging arbitrary and
capricious conduct by Defendants to support an award of attorneys' fees under California Law, at
Government Code section 800. Complaint, page 7, par. 18. The Complaint identifies no specific
federal law or provision of the United States Constitution that provides plaintiff any relief. The
complaint invokes no federal statutory or Constitutional right. Consequently, this case does not "arise
under" federal law and should be remanded to state court. See Franchise Tax Board v. Construction
Laborers Vacation Trust, 463 U.S. 1 (1983).
B. ARGUMENT.
A. Removal of Cases Involving a Federal Question
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
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Federal courts have limited jurisdiction to hear only those cases specified by the Constitution
or the Congress. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994). 28 USC
Section 1441 (a) authorizes removal of civil actions within the original jurisdiction of
the federal district courts. Section 1441(b) reads, in part:
Any civil action of which the district courts have original jurisdiction founded on a claim or
right arising under the Constitution, treaties or laws of the United States shall be removable without
regard to the citizenship or residence of the parties. 28 U.S.C. § 1441(b).
This section 1441(b), "arising under the Constitution, treaties, or laws of the United States," is
nearly identical to the language "arises under the Constitution, laws, or Treaties of the United States,"
which is m:;ed in Section 1331 of Title 28, conferring federal question jurisdiction on the federal
courts. Therefore, it is appropriate to follow the general principles governing federal question
14
. jurisdiction when determining removal jurisdiction. Page v. Tri-City Healthcare Dist., 860 F. Supp.
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2d 1154 (S.D. Cal. 2012).
Removal is proper only when a right created by the Constitution, a treaty, or other federal law
is an essential element of the plaintiffs properly pleaded claim for relief. Lippitt v. Rayrrwnd James
Financial Services, Inc., 340 F.3d 1033 (9th Cir. 2003). In this case, neither federal law nor the U.S.
Constitution is a necessary element of plaintiffs claims.
B. Definition of "Arising Under"
Article III, Section 2, of the Constitution provides that the judicial power of the United States
extends to cases "arising under this Constitution, the Laws of the United States, and Treaties made, or
which shall be made, under their Authority." The meaning of "arising under" is the requirement that
the plaintiffs well-pleaded complaint use federal law that is central to the dispute. Empire
Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 699 (2006).
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
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Plaintiff pleads no specific federal law or Constitutional provision as the basis for any claim.
The complaint reads: "This action is brought to enforce the mandatory requirements of the Ordinances
and Personnel System of the City of Carmel-by-the-Sea, the Constitution and laws of the State o
California, and the mandatory duties of the City Council, the City Administrator and the City Human
Resources Director arising under those laws." Pleading: Preliminary Statement 1: 26-28. All seven
causes of action plead State based claims. Not a single cause of action is based on any federal law.
C. The Complaint Pleads No Substantial Federal Question
Federal jurisdiction requires that a federal question be a substantial part of the case. The
substantiality requirement does not refer to the value of the interests that are at stake but to whether
there is any legal substance to the position the may be plainly unsubstantial, either because it is
'obviously without merit' or because previous court decisions render it unsound and it cannot be
inferred that the federal question is the subject of controversy. A pleading that does not specify what
laws were violated could be dismissed for failure to state a claim.
In Rains v. Criterion Systems, Inc., 80 F.3d 339 (1996) the court held the district court had no
jurisdiction over a case where the plaintiff pled language similar to the complaint pled here but more
specifically mentioning Title VII.
Rains held the direct and indirect references to Title VII in those his state law causes of action
do not make those claims into federal causes of action. Rather, the complaint merely incorporates
Title VII as one of several similar sources of public policy supporting defendant's state law claims. I d.
In the pleading before us there is no legal theory connected to any federal statute or
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
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Constitutional provision. As in Rains, the Complaint references federal law as one of several sources
of evidence of Defendants' arbitrary and capricious conduct sufficient to support an award of
attorney's fees under California law, which can be awarded by the court only if Plaintiff prevails in his
state law claims. California Government Code section 800. That statute expressly provides at
California Government Code section 800(b ): "This section is ancillary only, and shall not be
construed to create a new cause of action". Each cause of action stated in the Complaint arises from
California statutes and Constitutional provisions. Each cause of action is independent from any
federal right or authority. Each is complete in and of itself without having to resort to federal law to
obtain relief. Even where a claim can be supported by alternative and independent theories-one of
which is a state law t h   o r ~ and one of which is a federal law theory-federal question jurisdiction
does not attach unless federal law is an essential element of each claim. Christianson v. Colt
Industries Operating Corp., 486 U.S. 800 at 810, 108 S.Ct. 2166, at 2174, 100 L.Ed.2d 811 (1988)
D. Defendant Cites Incorrect Removal Statute
Defendant incorrectly cites to 28 U.S.C. § 1441(b) as basis for removal to federal court. §
1441(b) is for removal based on diversity. Notice of Removal Cover Page, 1: 15-21. Parties are
citizens of the same state and therefore jurisdiction cannot be granted under this statute. Removal
then is improper. Traskv. Kasenetz, 818 F. Supp. 39 (E.D. N.Y. 1993).
E. Removal is Disfavored So The Exercise Of Removal Jurisdiction Is Strictly
Construed.
Am. Fire & Cas. Co. v. Finn. 341 U.S. 6, 10, (1951). Abrego v. Dow Chern. Co., 443 F.3d
676, 685 (9th Cir. 2006). A removal statute must be strictly construed, "with all doubts and
ambiguities resolved against removal and in favor of remand." Shamrock Oil & Gas Corp. v. Sheets,
313 U.S. 100, 108 (1941).
This strong presumption against removal demonstrates that the defendant has the burden of
establishing that removal is proper. Here, defendants incorrectly cite the removal statute and also d9
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
Case5:14-cv-03084-RMW Document9-2 Filed08/01/14 Page8 of 11
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not properly establish jurisdiction by stating facts that prove the claims in the pleading "arise under" a
specific federal law. Any ambiguity should compel an order remanding this matter to state court.
Dated: J ~ >I '2014
STONER, WELSH & SCHMIDT
~ ~   t / ~ 1 _ _
Michelle A. Welsh
Attorneys for Petitioner/Plaintiff, STEVEN MciNCHAK
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO REMAND CASE TO
STATE COURT
CASE NO.: 5:14-CV-030084 (HRL)
8
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Michelle A. Welsh, SBN 84127
STONER, WELSH & SCHMIDT
413 Forest A venue
Pacific Grove, CA 93950-4201
Telephone: 831-373-1993
Facsimile: 831-373-1492
Email: MAW @stonerwelsh.com
6 Attorneys for Plaintiff, Steven Mclnchak
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
STEVEN MciNCHAK
PETITIONER/Plaintiffs
v.
CITY OF CARMEL-BY-THE-SEA, JASON
STILWELL, CITY ADMINISTRATOR OF
THE CITY OF CARMEL BY-THE-SEA,
SUSAN PAUL, ADMINISTRATIVE
SERVICES DIRECTOR OF THE CITY OF
CARMEL BY-THE-SEA; AND DOES 1-50,
inclusive,
Defendants.
CASE NO: 5:14-CV-03084 (HRL)
Hearing Date: September 30, 2014
Hearing time: 10:00 am
Monterey County Superior Court
Case No: Ml28062
[PROPOSED] ORDER GRANTING
PLAINTIFF'S MOTION TO REMAND
Action Filed: June 4, 2014
Discovery Cutoff: Not Set
Trial Date: Not Set
Plaintiffs motion to remand this matter back to state court came on regularly for hearing on
September 30,2014, at 10:00 am a.m. in Courtroom 2 ofthe above entitled court, located at 280 S.
First Street, 5th Floor, San Jose, California, 95113. Plaintiff Steven Mcinchak appeared by counsel,
Phillip J. Griego and defendants appeared by counsel _______ . Having read and
considered all the moving and opposing papers and points and authorities and having considered
oral argument of counsel;
Ill
Ill
[PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION TO REMAND
CASE NO.: 5:14-CV-030084 (HRL)
Case5:14-cv-03084-RMW Document9-2 Filed08/01/14 Page10 of 11
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IT IS HEREBY ORDERED that Plaintiff's motion to remand this case to the
Superior Court of California, Monterey County IS GRANTED on the grounds that the causes of
action alleged in Plaintiff's complaint do not arise under The Constitution, Treaties or Laws of The
United States.
Dated: , 2014
--------------------
Honorable Howard R. Lloyd
United States District Court
Northern District of California
San Jose Facility
[PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION TO REMAND
CASE NO.: 5:14-CV-030084 (HRL)
2
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PROOF OF SERVICE
I, the undersigned, hereby declare that:
I am over the age of eighteen and not a party to the within cause. I am employed with
Phillip J. Griego at 95 South Market Street, Suite 520, San Jose, California, 95113, County of
Santa Clara. I am readily familiar with this firm's practice of collection and processing of
correspondence for mailing, hand delivery, overnight mail/courier and facsimile transmission.
On August 1, 2014, I served:



NOTICE OF MOTION AND MOTION TO REMAND CASE TO
STATE COURT
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO REMAND CASE TO STATE COURT
[PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION TO REMAND
11 upon the following interested party( s) in said cause:
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• Jeffrey Alan Dinkin, Allison Elizabeth Burns, David Charles Palmer
Stradling Y occa Carlson & Rauth
660 Newport Center Dr Ste 1600
Newport Beach, CA 92660
VIA MAIL (CCP §§ 1013(a), 2015.5)
LX_] By placing a true copy thereof in a sealed envelope(s), addressed as above, and by
depositing a true copy thereof that same day in the United States Mail in San Jose, California,
with postage thereon fully prepaid, following ordinary business practices.
VIA OVERNIGHT MAIL/COURIER (CCP §§ 1013(c), 2015.5)
U By placing a true copy thereof in a sealed envelope(s), addressed as above, and on
that date placing such for collection for overnight delivery by providing a true copy thereof with
an authorized courier and/or overnight mail carrier, with delivery fees paid or provided, for
ddivery on the following business day, following ordinary business practices.
VIA FACSIMILE (CCP §§ 1013(e), 2015.5, CRC 2008, FRCP Rule 5(e))
[ ] By arranging for the transmission( s) of a true copy thereof, from facsimile
number (408)293-1959 to the facsimile number(s) noted above, prior to 5:00p.m., that same day,
in the ordinary course of business. The transmission report confirms transmission was complete
and without error. The parties have agreed to service by facsimile.
VIA HAND-DELIVERY (CCP §§ 1011, 2015.5)
U By placing a true copy thereof in a sealed envelope( s ), addressed as above, and
causing same to be hand-served by either an employee of my firm or a retained courier, with
delivery fees paid or provided, for delivery that same day, in the ordinary course of business.
I declare under penalty of perjury that the foregoing is true and correct under the laws of .
the State of California. Executed on August 1, 2014, at San Jose, California.
& '1 ,,
Case Number: 5:14-CV-03084 (HRL)
Prrof of Service
r 7 f/ .
.A.J &J1itrfiL
Geri Colbath
1
Case5:14-cv-03084-RMW Document9-3 Filed08/01/14 Page1 of 1
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PROOF OF SERVICE
I, the undersigned, hereby declare that:
I am over the age of eighteen and not a party to the within cause. I am employed with
Phillip J. Griego at 95 South Market Street, Suite 520, San Jose, California, 95113, County of
Santa Clara. I am readily familiar with this firm's practice of collection and processing of
correspondence for mailing, hand delivery, overnight mail/courier and facsimile transmission.
On August 1, 2014, I served:



NOTICE OF MOTION AND MOTION TO REMAND CASE TO
STATE COURT
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO REMAND CASE TO STATE COURT
[PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION TO REMAND
11 upon the following interested party(s) in said cause:
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
• Jeffrey Alan Dinkin, Allison Elizabeth Burns, David Charles Palmer
Stradling Y occa Carlson & Rauth
660 Newport Center Dr Ste 1600
Newport Beach, CA 92660
VIA MAIL (CCP §§ 1013(a), 2015.5)
[ By placing a true copy thereof in a sealed envelope(s), addressed as above, and by
depositing a true copy thereof that same day in the United States Mail in San Jose, California,
with postage thereon fully prepaid, following ordinary business practices.
VIA OVERNIGHT MAIL/COURIER (CCP §§ 1013(c), 2015.5)
[ ] By placing a true copy thereof in a sealed envelope(s), addressed as above, and on
that date placing such for collection for overnight delivery by providing a true copy thereof with
an authorized courier and/or overnight mail carrier, with delivery fees paid or provided, for
ddivery on the following business day, following ordinary business practices.
VIA FACSIMILE (CCP §§ 1013(e), 2015.5, CRC 2008, FRCP Rule 5(e))
[ ] By arranging for the transmission( s) of a true copy thereof, from facsimile
number (408)293-1959 to the facsimile number(s) noted above, prior to 5:00p.m., that same day,
in the ordinary course of business. The transmission report confirms transmission was complete
and without error. The parties have agreed to service by facsimile.
VIA HAND-DELIVERY (CCP §§ 1011, 2015.5)
U By placing a true copy thereof in a sealed envelope(s), addressed as above, and
causing same to be hand-served by either an employee of my firm or a retained courier, with
delivery fees paid or provided, for delivery that same day, in the ordinary course of business.
I declare under penalty of perjury that the foregoing is true and correct under the laws of.
the State of California. Executed on August 1, 2014, at San Jose, California.
1
Case Number: 5:14-CV-03084 (HRL)
Prrof of Service
.&M.  
Geri Colbath
1

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