Thien Tran v. Anthony Nguyen

Filing 22

ORDER Remanding Case 5 by Judge Cormac J. Carney: Accordingly, Plaintiff's Motion to Remand is GRANTED. See document for further information. MD JS-6. Case Terminated. (lwag)

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JS-6

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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THIEN TRAN,

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Plaintiff,

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v.

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ANTHONY NGUYEN

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Defendant.
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) Case No.: SACV 17-00128-CJC(DFMx)
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) ORDER REMANDING CASE
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Before the Court is Plaintiff’s motion to remand this case to Orange County

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Superior Court. (Dkt. 5.) For the following reasons, his motion is GRANTED.1

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Having read and considered the papers presented by the parties, the Court finds this matter appropriate
for disposition without a hearing. See Fed. R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing set
for March 13, 2017, at 1:30 p.m. is hereby vacated and off calendar.
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Pursuant to 28 U.S.C. § 1446(b)(1), defendants may remove cases from state court

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to federal court within thirty days of service of the pleadings. In this case, Defendant

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purports to remove all or parts of three state court cases pending in Orange County

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Superior Court: No. 30-2014-00722873, No. 30-2014-00722268, and No. 30-2014-

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00239544. Defendant is unequivocally the plaintiff in two of those cases, No. 30-2014-

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00722268 and No. 30-2014-00239544. (See Dkt. 1 Exs. 2, 3.) The remaining case, No.

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30-2014-00722873, was filed on May 15, 2014. (Id. Ex. 1.) Needless to say, more than

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thirty days have elapsed and accordingly removal is improper; Defendant received

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service shortly after the case was filed. (See Dkt. 5 Ex. 4 (consolidating cases No. 30-

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2014-00722873 and No. 30-2014-00722268 and indicating Defendant’s active

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participation); see also id. Ex. 3 (state court register of proceedings in No. 30-2014-

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00239544).) Accordingly, Plaintiff’s motion to remand is GRANTED.2

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According to Plaintiff, Defendant first attempted to remove this case to federal

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court on December 19, 2016, to stave off a judgment debtor exam that was set for

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December 29, 2016. (Dkt. 5 at 9.) Defendant appeared ex parte in state court on

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December 21, 2016, arguing that the action was stayed given removal; the state court

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stayed the action. (Id.) However, on January 3, 2017, at an ex parte hearing, the state

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court determined that the action had not been removed and reset the debtor’s exam for

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January 26, 2017. (Id. at 10.) Defendant actually filed a notice of removal with the

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federal court on January 5, 2017. (Id.) That case, SACV 17-00015 AG(JCGx), was

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remanded by Judge Guilford on January 18, 2017, for substantially the same reasons as

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stated herein. (See SACV 17-00015 AG(JCGx) Dkt. 11; see also id. Dkt. 7 (Plaintiff’s

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motion for remand).) To once again stave off his debtor’s exam, Defendant filed another

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notice of removal on January 25, 2017. (See SACV 17-00128 CJC(DFMx) Dkt. 1.)

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Because Defendant appears to be repeatedly abusing removal procedures to inhibit state

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Defendant’s two pending ex parte motions, (Dkts. 12, 13), are DENIED AS MOOT.
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courts from effectuating their judgments, the Court warns Defendant that should he file

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another frivolous notice of removal in his various state court proceedings, the Court will

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consider imposing sanctions pursuant to Federal Rule of Civil Procedure 11. See Fed. R.

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Civ. P. 11(b) (“By presenting to the court a pleading, written motion, or other paper—

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whether by signing, filing, submitting, or later advocating it—an attorney or

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unrepresented party certifies that to the best of the person’s knowledge, information, and

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belief, formed after an inquiry reasonable under the circumstances: it is not being

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presented for any improper purpose, such as to harass, cause unnecessary delay, or

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needlessly increase the cost of litigation; the claims, defenses, and other legal contentions

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are warranted by existing law or by a nonfrivolous argument for extending, modifying, or

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reversing existing law or for establishing new law . . . .”); id. 11(c)(4) (“A sanction

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imposed under this rule must be limited to what suffices to deter repetition of the conduct

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or comparable conduct by others similarly situated. The sanction may include

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nonmonetary directives [and] an order to pay a penalty into court.”).

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DATED:

February 17, 2017

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__________________________________
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CORMAC J. CARNEY
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UNITED STATES DISTRICT JUDGE
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