Evans v. Department of Fair Employment and Housing

Filing 4

FINDINGS and RECOMMENDATIONS recommending DISMISSAL and REMAND of action on grounds that plaintiff has wrongly removed the state court action to this court; matter referred to Judge Ishii; objections to F&R due by 1/19/2007; order signed by Judge Lawrence J. O'Neill on 1/3/07. (Rooney, M)

Evans v. Department of Fair Employment and Housing

Doc. 4

Case 1:06-cv-01890-AWI-LJO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Defendant. 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. JAMAR EVANS, Plaintiff,

Document 4

Filed 01/03/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

CASE NO. CV F 06-1890 AWI LJO FINDINGS AND RECOMMENDATIONS TO DISMISS AND REMAND ACTION

DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, / BACKGROUND On December 27, 2006, pro se plaintiff Jamar Evans ("plaintiff") filed his notice to remove to this Court his Fresno County Superior Court action, entitled Jamar Evans v. Department of Fair Employment & Housing, Case No. 05 CE CG 01873 MWS ("state action"). Like here, plaintiff is the plaintiff in the state action and similarly names the California Department of Fair Employment & Housing ("DFEH") as defendant. Plaintiff appears to seek removal to this Court after unfavorable rulings by the Fresno County Superior Court and California Court of Appeal, Fifth District. DISCUSSION A plaintiff may not remove a state action to federal court in that the right to remove is vested exclusively in "the defendant or the defendants." 28 U.S.C. § 1441(a). A plaintiff who has chosen to commence an action in state court cannot later remove to federal court. Southland Corp. v. Estridge, 456 F.Supp. 1296, 1300 (C.D. Cal. 1978). 1

Dockets.Justia.com

Case 1:06-cv-01890-AWI-LJO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: 66h44d

Document 4

Filed 01/03/2007

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Plaintiff is the plaintiff in the state action and is unable to remove the state action to this Court. Plaintiff appears to seek removal after receiving unfavorable state court rulings. As such, this action should be dismissed from this Court and remanded to the Fresno County Superior Court. RECOMMENDATION AND ORDER For the reasons discussed above, this Court RECOMMENDS to DISMISS and to REMAND this action on grounds that plaintiff has wrongly removed the state court action to this Court. These findings and recommendations are submitted to the United States district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 72-304. No later than January 19, 2006, plaintiff may file written objections to these findings and recommendations with the Court and in compliance with this Court's Local Rule 72-304(b). Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The district court will then review the magistrate judge's ruling, pursuant to 28 U.S.C. § 636(b)(1)(c)). Plaintiff is admonished that failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). IT IS SO ORDERED. January 3, 2007 /s/ Lawrence J. O'Neill UNITED STATES MAGISTRATE JUDGE

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