Hazel McKillop v. Morgan Eddy Eastwood et al

Filing 5

ORDER SUMMARILY REMANDING IMPROPERLY-REMOVED ACTION by Judge George H. King remanding case to Los Angeles County Superior Court, Case number 14F00960. (See document for specifics) (Attachments: # 1 CV-103) (adu)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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HAZEL MCKILLOP,

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Plaintiff,

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vs.

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Case No. CV 14-3487-UA (DUTYx)
ORDER SUMMARILY REMANDING
IMPROPERLY-REMOVED ACTION

MORGAN EDDY EASTWOOD
CECELIA ACEVEDO, DOES 1 '
TO 10,

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Defendants.

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Roberto Ramirez ("Applicant") lodged a pro se Notice of Removal of State

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Court Action ("Notice of Removal") herein on May 6, 2014. Applicant also filed a

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request to proceed without prepayment of full filing fee ("IFP Request") on May 6,

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2014.

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After careful review and consideration of the allegations of the Notice of

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Removal, and pursuant to 28 U.S.C. Section 1915, the Court finds that the

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Applicant's allegations are frivolous and are not sufficient to state any claim as

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presently plead in the Notice of Removal.

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The Court has screened the Notice of Removal prior to ordering service for

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purposes of determining whether the action is frivolous or malicious; or fails to state

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1 a claim on which relief may be granted; or seeks monetary relief against a party who
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is immune from such relief.

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In addition, the Court's screening of the Notice ofRemoval is governed by the

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following standards. A complaint may be dismissed as a matter of law for failure to

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state a claim for two reasons:

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insufficient facts under a cognizable legal theory. See Balistreri v. Pacifica Police

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Dep 't, 901 F .2d 696, 699 (9th Cir. 1990). Since the Applicant is appearing pro se, the

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Court must construe the allegations of the Notice of Removal liberally and must

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afford plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police

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Dep't, 839 F.2d 621, 623 (9th Cir. 1988). Moreover, in determining whether the

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Notice ofRemoval states a claim on which relief may be granted, the Court must take

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its allegations of material fact as true and must construe them in the light most

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favorable to plaintiff. See Love v. United States, 915 F.2d 1242, 1245 (9th Cir.

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1989). However, as the Supreme Court has held: "a [party's] obligation to provide

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the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions,

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and a formulaic recitation of the elements of a cause of action will not do .... Factual

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allegations must be enough to raise a right to relief above the speculative level." Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929

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(2007) (internal citations omitted).

(1) Lack of a cognizable legal theory; or (2)

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As the Supreme Court has explained, to conform with the pleading

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requirements ofF ed. R. Civ. P. 8, "a complaint must contain sufficient factual matter,

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accepted as true, to 'state a claim to relief that is plausible on its face"' (Ashcroft v.

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Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), quoting

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Twombly 550 U.S. at 570), and "threadbare recitals of the elements of a cause of

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action, supported by mere conclusory statements, do not suffice." (I d., citing

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Twombly, 550 U.S. at 555). In elaborating on the requirements of Rule 8 that a

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complaint must state sufficient facts to support a plausible (rather than a merely

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possible) cause of action, the Iqbal Court stated that "[W]here the well-pleaded facts
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do not permit the court to infer more than the mere possibility of misconduct, the

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complaint has alleged- but it has not 'show[ n] '- 'that the pleader is entitled to relief'"

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(Iqbal, 556 U.S. at 678, citing to Fed. R. Civ. P. 8(a)(2).)

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Here, the underlying state action is a straight-forward unlawful detainer action,

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and therefore does not present a federal question. Even assuming that the defendants

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in that action intended to assert a federal defense to the state law claim, such action

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does not convert it to "arising under" federal law for purposes of federal question

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2009)).
The Court further notes that the Applicant is not named as a defendant (or in

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any capacity) in the underlying unlawful detainer action he seeks to remove. 1

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Applicant alleges to be a tenant of the subject property and has filed a Claim ofRight

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to Possession in state court. Pursuant to 28 U.S.C. § I446(a) "[a] defendant or

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defendants desiring to remove any civil action or criminal prosecution from a State

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court shall file in the district court of the United States for the district and division

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within which such action is pending a notice of removal signed pursuant to Rule II

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of the Federal Rules of Civil Procedure and containing a short and plain statement of

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the grounds for removal, together with a copy of all process, pleadings, and orders

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served upon such defendant or defendants in such action." As Applicant is not a

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defendant in the action he seeks to remove - or even a party - there is no basis for

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such removal.

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For these reasons, defendant's IFP Request is DENIED.

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IT IS ORDERED that (I) this matter be REMANDED to the Superior Court

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of California, Los Angeles County, 275 Magnolia Avenue, Long Beach, CA 90802,

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for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1446(a); (2) that the

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Indeed, the Notice of Removal also references "Reshan Coleman" as
the defendant. (Notice ofRemoval at 1.)
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Clerk send a certified copy of this Order to the state court; and (3) that the Clerk serve

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copies of this Order on the parties.

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IT IS SO ORDERED.

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DATED:

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CHIEF UNITED STATES

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Presented by:

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