(PS) Caldwell v. Sliwa et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ANDREW CALDWELL,
Plaintiff,
v.
MAREK P. SLIWA, et al.,
Defendants.
No. 2:25-CV-03284-TLN-DMC
ORDER
And
FINDINGS AND RECOMMENDATIONS
Plaintiff, who is proceeding pro se, brings this civil action. Pending before the
Court is Plaintiff’s motions to remand, ECF Nos. 10 and 13.
I. BACKGROUND
Plaintiff originally filed the action in Sacramento Superior Court on June 23, 2025
and Defendants Sliwa, Jackson, and Bartosh removed the action to federal court, pursuant to
federal question jurisdiction. See ECF No. 1. Plaintiff’s original state complaint asserted three
federal claims and eight state claims. See id. at 9. The caption listed the defendants as: (1)
George Little Investments Inc.; (2) Doug Nelson; (3) George Little; (4) Marek Sliwa; (5) Cody
Jackson; and (6) Shawn Bartosh. See id. The claims arise from an alleged taking of Plaintiff’s
vehicle on June 22, 2022. See id. at 10. Plaintiff filed an amended complaint, ECF No. 11,
without leave of court and accordingly, the amended complaint was stricken. See ECF No. 14.
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Plaintiff seeks to remand the matter back to state court, asserting that removal was
improper because “not all properly served defendants consented to the removal” in violation of
28 U.S.C. §1446(b)(2)(A), and because Plaintiff does not want to pursue his federal claims. ECF
No. 13, pg. 3. Plaintiff contends that on the day the matter was removed to federal court, he
attempted to file an amended complaint which dropped the federal claims, but because the action
was removed, Sacramento Superior Court rejected the filing. See id. at 5-6. Plaintiff did file an
amended complaint in federal court, ECF No. 11, but it was struck because it was beyond the 21-
day period in which amendment is allowed, and Plaintiff did not seek leave of court. See ECF No.
14. Plaintiff attaches his proposed amended complaint, which only asserts state claims, to his
motion to remand. See ECF No. 13, pgs. 15-181.
Defendants Sliwa, Jackson, Bartosh, George Little Investments Inc. and George
Little filed the joint opposition to Plaintiff’s motion to remand asserting that federal jurisdiction
was proper because it existed at the time of removal and Defendants did not know of one another
when the action was removed. See ECF No. 16, pgs. 3-5. Additionally, Defendants assert that
Plaintiff’s amended complaint was “untimely, [] improperly piecemeal,” and note it was stricken
by this Court. Id. at 3. Defendants contend that Plaintiff asserted claims arising from the Fourth
and Fourteenth Amendments and such claims “are dependent upon the resolution of whether
Plaintiff’s vehicle was improperly seized by Defendant, either in the absence of a warrant or
exception thereto, or without due process of law.” Id. at 4. Defendants assert that jurisdiction over
Plaintiff’s state claims is proper because they “derive from a common nucleus of operative fact,”
and therefore, there is supplemental jurisdiction over such claims. Id.
Next, Defendants contend that “neither Defendant was aware of the other at the
time the removal was filed,” and failure to get consent from all properly served Defendants prior
to removal is “curable defect which may be satisfied by the court-permitted filing
of an amended notice of removal containing the authorization of all Defendants.” Id. Defendants
explain that “at the time City Defendants filed the removal of this action in this
Court, no party was aware of the other as City Defendants had not made an appearance in the
matter below, and had not received service from any party other than Plaintiff as a result.” Id. at
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5. Defendants therefore “request that they be permitted to file an amended notice of removal in
accordance with 28 U.S.C. section 1653 in order to cure any perception of a lack of unanimity in
the removal and continued federal jurisdiction of this action.” Id.
II. DISCUSSION
Plaintiff’s request to amend his complaint shall be construed as a motion for leave
to amend and the undersigned will grant such motion. Thus, the action proceeds on Plaintiff’s
first amended complaint, ECF No. 13, pgs. 15-181. Given Defendant’s failure to obtain consent
from all properly served Defendants and that the amended complaint asserts no federal claims, the
undersigned will recommend that the Court decline to exercise discretion to retain jurisdiction
grant Plaintiff’s motions to remand.
Pursuant to 28 U.S. Code § 1446 (b)(2)(A), “all defendants who have been
properly joined and served must join in or consent to the removal of the action.” “The failure to
join all proper defendants in a removal petition may otherwise render the removal petition
procedurally defective.” Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n.1 (9th Cir. 1988).1
Defendants concede that Defendants Little, Sliwa, Jackson, and Bartosh had all
been properly served at the time that Defendants Sliwa, Jackson, and Bartosh filed for removal.
See ECF No. 16, pg. 5. Defendants Sliwa, Jackson, and Bartosh do not explain why they failed to
get consent from Defendant Little prior to removing the case, aside from stating that “no party
was aware of the other.” Id. However, the caption of Plaintiff’s original state complaint, ECF No.
1, pg. 9, and the caption generated by Defendants Sliwa, Jackson, and Bartosh, ECF No. 1, pg. 1,
both included the other Defendants’ names. Thus, Defendants Sliwa, Jackson, and Bartosh were
on notice that other Defendants existed and may have been properly served. Defendants Sliwa,
1 The Court notes that a notice of removal “shall be filed within 30 days after the receipt by the
defendant.” 28 U.S. Code § 1446(b)(1). Plaintiff filed the state complaint on June 23, 2025, ECF
No. 1, pg. 2, and the summons for Defendant Jackson indicates he was served on June 25, 2025,
id. at 4. Defendants filed for removal on November 12, 2025. See id. at 1. Thus, it appears that
Defendants filed for removal after the 30-day period. However, the record is unclear as to when
the other Defendants were served and therefore, the Court does not consider this potential
procedural defect.
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Jackson, and Bartosh provide no explanation for why they did not assume those Defendants had
been served nor exercise due diligence in reaching out to the other Defendants to confirm they
were served, and whether they wanted to consent to removal. Exercising such due diligence
would not have been unduly burdensome because the only other Defendants were Defendant
George Little Investments, Inc., Little, and Nelson. Thus, the Court finds Defendants’ failure to
join all properly served Defendants in their removal, renders the removal petition procedurally
defective.
Defendants assert they can remedy this procedural defect if the court permits them
to file an amended notice of removal, but at the same time oppose allowing Plaintiff to file an
amended complaint. “[T]he ‘rule favoring liberality in amendments to pleadings is particularly
important for the pro se litigant. Presumably unskilled in the law, the pro se litigant is far more
prone to making errors in pleading than the person who benefits from the representation of
counsel.’” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (quoting Noll v. Carlson, 809
F.2d 1446, 1448 (9th Cir. 1987)). The Court finds it appropriate to allow Plaintiff, who is
proceeding pro se, to amend his complaint to abandon his federal claims. Accordingly, the
undersigned will grant Plaintiff’s motion for leave to amend and the action shall proceed on
Plaintiff’s first amended complaint, ECF No. 13, pgs. 15-181. The Court will now consider
whether the Court should retain jurisdiction over Plaintiff’s remaining state claims.
When a case “of which the district courts of the United States have original
jurisdiction” is initially brought in state court, the defendant may remove it to federal court. 28
U.S.C. § 1441(a). Upon removal to federal court, the court shall “have supplemental jurisdiction
over all other claims that . . . form part of the same case or controversy.” 28 U.S.C. § 1367(a).
However, when federal claims are eliminated from the complaint, a court may properly refuse
supplemental jurisdiction over related state claims. See 28 U.S.C. § 1367(c)(3); Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); United Mine Workers v. Gibbs, 383 U.S. 715
(1966) (noting whether state law claims “should ” be dismissed if federal claims are dismissed
before trial does not mean they must be dismissed; while courts “shall have supplemental
jurisdiction under § 1367(a), they “may” decline to exercise it under § 1367(c)”). Once all
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federal claims have been dismissed from a case, whether to retain jurisdiction over any remaining
state law claims is left to the discretion of the district court “upon a proper determination that
retaining jurisdiction over the case would be inappropriate.” Carnegie–Mellon, 484 U.S. at 357;
Acri, 114 F.3d at 1000.
Under Gibbs and Carnegie-Mellon, a federal court should “consider and weigh in
each case, and at every stage of the litigation, the values of judicial economy, convenience,
fairness, and comity in order to decide whether to exercise jurisdiction” over a case involving
pendent state-law claims. Carnegie-Mellon Univ., 484 U.S. at 350 (quoting Gibbs, 383 U.S. at
726-27). A Plaintiff’s attempt to manipulate the forum may also be considered in determining
remand. Id. at 357. Generally, if federal claims are dismissed prior to trial, state law claims should
be remanded to state court “both as a matter of comity and to promote justice between the parties,
by procuring for them a surer-footed reading of applicable law.” Gibbs, 383 U.S. at 726;
Carnegie-Mellon Univ., 484 U.S. at 350 n.7 (noting that “in the usual case in which all federal-
law claims are eliminated before trial, the balance of factors to be considered . . . will point
toward declining to exercise jurisdiction over the remaining state-law claims.”). In fact, “state law
claims ‘should’ be dismissed if federal claims are dismissed before trial.” Acri, 114 F.3d at 1000;
Wren v. Sletten Const. Co., 654 F.2d 529, 536 (9th Cir. 1981) (“When the state issues apparently
predominate and all federal claims are dismissed before trial, the proper exercise of discretion
requires dismissal of the state claim.”).
Here, Plaintiff removed all federal claims in his amended complaint. See ECF No.
13, pgs. 15-181. According to Plaintiff, he had already attempted to abandon the federal claims
in state court the same day Defendants removed the action, indicating Plaintiff’s good faith intent
to abandon such claims. To the extent that Defendants argue that in order to pursue the remaining
claims, Plaintiff must establish that the actions were in violation of the Fourth Amendment, the
undersigned disagrees. Plaintiff claims that his vehicle was taken “in flagrant defiance of
constitutional principles . . . which constituted an invasion of a constitutionally protected private
area.” ECF No. 13, pg. 23 (Plaintiff’s first amended complaint).
/ / /
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The California Supreme Court held that:
The Fourth Amendment to the United States Constitution provides, in
pertinent part: ‘The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be
violated … .’ Article I, section 13 of the California Constitution provides, in
essentially identical language: ‘The right of the people to be secure in
their persons, houses, papers, and effects against
unreasonable seizures and searches may not be violated … .’
People v. Buza, 4 Cal. 5th 658, 669-70 (2018)
Plaintiff’s claim of a constitutional violation, though not explicitly referencing the
state constitution, can be read2 to arise from California’s constitutional protections, not the Fourth
Amendment. Thus, Plaintiff’s proposed amended complaint asserts claims that do not rely on nor
arise from federal law. Given Plaintiff no longer asserts federal claims, the undersigned will
recommend the Court decline to exercise discretion to retain jurisdiction over the remaining state
claims and grant Plaintiff’s motion to remand.
Moreover, because this matter has not proceeded past the initial pleading stage,
judicial economy does not compel the exercise of supplemental jurisdiction over Plaintiffs’
remaining state law claims. See e.g., Aguaristi v. Cty. of Merced, No. 1:18-cv-01053-DAD-EPG,
2022 WL 2392621, at *18 (E.D. Cal. July 1, 2022) (finding judicial economy did not compel the
exercise of supplemental jurisdiction over plaintiff’s remaining state law claims where the
pending motion for summary judgment was “only the second motion filed in this case on which
the court has ruled”); Zayas v. Navarro, No. 221CV00218WBSDBP, 2023 WL 2815590, at *6
(E.D. Cal. Apr. 6, 2023) (recommending court decline to exercise supplemental jurisdiction
because only state law claims remained after dismissal of claims over which court had original
jurisdiction); Cobb v. JPMorgan Chase Bank, N.A., No. C 12-01372 JSW, 2012 WL 5335309, at
*9 (N.D. Cal. Oct. 26, 2012), aff’d sub nom. Cobb v. JPMorgan Chase Bank NA, 594 F. App’x
395 (9th Cir. 2015) (declining to exercise supplemental jurisdiction because it would be equally
2 “The Supreme Court has instructed the federal courts to liberally construe the inartful pleading
of pro se litigants. It is settled that the allegations of [a pro se litigant’s complaint] however
inartfully pleaded are held to less stringent standards than formal pleadings drafted by lawyers.”
See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (citation and internal quotation marks
omitted; brackets in original).
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convenient for the parties to try the only remaining state law claims in state court and the court
had expended few resources in supervising the case).
IV. CONCLUSION
Based on the above reasons, the undersigned orders and recommends as follows:
1. 	It is ORDERED that Plaintiff’s motion for leave to amend is GRANTED
and this action now proceeds on Plaintiff’s first amended complaint, ECF
No. 13, pgs. 15-181.
2. 	It is RECOMMENDED that the Court decline to exercise discretion to
retain jurisdiction over this action, as Plaintiff is only pursuing state claims.
3. 	It is RECOMMENDED that Plaintiff’s motions to remand, ECF Nos. 10
and 13, be GRANTED.
4. 	It is RECOMMENDED that this action be remanded to the Sacramento
County Superior Court.
These findings and recommendations are submitted to the United States District
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
after being served with these findings and recommendations any party may file written objections
with the Court. Responses to objections shall be filed within 14 days after service of objections.
Failure to file objections within the specified time may waive the right to appeal. See Martinez v.
Ylst, 951 F.2d 1153 (9th Cir. 1991).
Dated: February 5, 2026
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE
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