Miller v. Brown, et al.

Filing 45

FINDINGS and RECOMMENDATIONS to Remand the Matter to the Fresno County Superior Court; ORDER DENYING 43 Motion for a Hearing as MOOT signed by Magistrate Judge Jennifer L. Thurston on 9/30/2011. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 10/17/2011. (Sant Agata, S)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL ANTHONY MILLER,

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Plaintiff,

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Case No. 1:10-cv-00453 LJO JLT (PC)
FINDINGS AND RECOMMENDATION TO
REMAND THE MATTER TO THE FRESNO
COUNTY SUPERIOR COURT

vs.
EDMUND G. BROWN, JR., et al.,

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ORDER DENYING MOTION FOR A
HEARING AS MOOT

Defendants.
(Doc. 43)

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I.

BACKGROUND

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis. On September 30, 2010,

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the Court issued findings and recommendations recommending that Plaintiff’s motion to remand be

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denied.1 (Doc. 16.) The Court explained that despite Plaintiff’s apparent desire to maintain his action

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in state court, his operative pleading contained a federal RICO claim pursuant to 18 U.S.C. § 1961. (Id.

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at 2-3.) The Court therefore denied the motion to remand, but also advised Plaintiff that he may move

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to dismiss the RICO claim and the Court would reconsider its jurisdiction over this action at that time.

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(Id. at 3.) Plaintiff filed two amended complaints thereafter, one on October 14, 2010 and another on

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October 18, 2010. (Docs. 17 & 19.)

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On September 16, 2011, the Court screened Plaintiff’s Second Amended complaint and

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The findings and recommendations were adopted in full by the District Judge assigned to this case on January 10,
2011. (Doc. 28.)

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determined that it did not state a claim under federal law or the United States Constitution. (Doc. 41)

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The Court granted plaintiff leave to amend but observed that if Plaintiff was unable or chose to amend

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the complaint to eliminate the federal claims, the Court would be inclined to remand the matter to the

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Fresno County Superior Court. Id. at 6.

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For the reasons set forth below, the Court recommends that the matter be REMANDED to the

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Fresno County Superior Court. In doing so, the Court DENIES AS MOOT, Plaintiff’s request for a

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hearing on the matter. (Doc. 43)

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II.

SCREENING REQUIREMENT

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The Court is required to review a case in which a prisoner seeks redress from a governmental

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entity or officer. 28 U.S.C. § 1915A(a). The Court must review the complaint and dismiss any portion

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thereof that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks

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monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). If the Court

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determines the complaint fails to state a claim, leave to amend should be granted to the extent that the

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deficiencies in the pleading can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th

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Cir. 2000) (en banc).

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“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim

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showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . .

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. claim is and the grounds upon which it rests[.]’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

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(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Nevertheless, a plaintiff’s obligation to

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provide the grounds of entitlement to relief under Rule 8(a)(2) requires more than “naked assertions,”

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“labels and conclusions,” or “formulaic recitation[s] of the elements of a cause of action.” Twombly,

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550 U.S. at 555-57. The complaint “must contain sufficient factual matter, accepted as true, to ‘state

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a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d

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868, 883 (2009) (quoting Twombly, 550 U.S. at 570).

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III.

THE THIRD AMENDED COMPLAINT

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Plaintiff raises claims of intentional torts, negligence, violation of the Bane Act, defamation and

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violations of state criminal law and, as in his prior complaints, bases these causes of action on conditions

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of his confinement. (Doc. 43) Notably, Plaintiff has omitted all references to federal law, except as
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periodic clarification that he does not seek to raise claims under federal law. Id. Though Plaintiff alleges

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under the headings of “An Entity Called an Enterprise,” “Affects Interstate Commerce” and “Pattern of

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Activities,” Plaintiff makes abundantly clear that he has abandoned his RICO claim, which was alleged

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in his previous complaints, and seeks damages related to these headings under California Penal Code

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§ 182.2 Id. at 12-13. Thus, it appears that there is no federal question presented in the Third Amended

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Complaint.

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IV.

REMAND OF THIS MATTER IS WITHIN THE COURT’S DISCRETION

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The propriety of removal jurisdiction is determined at the time of removal. Pullman Co. v.

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Jenkins, 305 U.S. 534, 537 (1939). If a claim “arising under” federal law existed at the time of removal,

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the federal court has jurisdiction though the federal claim has been dropped from the case and only state

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law claims remain. Carnegie-Melon Univ. v. Cohill, 484 U.S. 343 (1988); Nishomoto v. Federman-

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Bachrach & Assoc., 903 F.2d 709, 715 (9th Cir. 1990). Here, because the initial complaint, which was

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in effect at the time of removal, contained at least one federal claim, the Court has jurisdiction. Indeed,

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the Court denied Plaintiff’s motion to remand based upon the federal question presented in the

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complaint. (Doc. 16, 2-3) Nevertheless, though Plaintiff “may not compel remand by amending [the]

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complaint to eliminate the federal question upon which removal was based” (Sparta Surgical Corp. v.

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Nat’l Assoc. of Sec. Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir. 1988)), if all federal claims are

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eliminated from an action, federal courts have discretion to remand the remaining state law claims.

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Harrell v. 20th Century Ins. Co., 934 F.2d 203, 205 (9th Cir. 1991) (“It is generally within a district

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court’s discretion to retain jurisdiction to adjudicate the pendent state claims or remand them to state

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court.”).

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In choosing whether to retain jurisdiction, the Court must consider “the values of judicial

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economy, convenience, fairness, and comity.” Carnegie-Melon, 484 U.S. at 350. Based upon these

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factors, “it is generally preferable for a district court to remand remaining pendent claims to state court.”

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Harrell, 934 F.2d at 205; see also Carnegie-Melon 484 U.S. at 350 n.7 (“these factors usually will favor

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a decision to relinquish jurisdiction when state issues substantially predominate”) (internal quotation

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marks and citation omitted).

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The Court refrains from any comment as to the propriety seeking damages under this section.

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In this case, the above factors weigh in favor of remand. Given the ongoing crisis in this Court

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created by the crushing case load and lack of judicial resources, the Court finds that judicial economy

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weighs in favor of remand. “With regard to comity, the path that best preserves the rights of the state to

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preside over the court matters is to remand the case.” Loder v. World Sav. Bank, N.A., 2011 U.S. Dist.

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LEXIS 98770, at *11 (N.D. Cal. Sept. 1, 2011). On the other hand, there is no evidence, that this Court

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is a more convenient forum than the state court. Notably, the Ninth Circuit has acknowledged that

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remand is proper when, as here, the plaintiff amends the complaint to remove federal claims and moves

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for remand without delay. See Baddie v. Berkeley Farms, Inc., 65 F.3d 487, 490-91 (9th Cir. 1995).

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V. Findings and Recommendations

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Based upon the foregoing, the Court finds the factors set forth in Carnegie-Melon weigh in favor

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of remand, and the Court should not exercise jurisdiction over the remaining state law claims.

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Accordingly, the Court hereby RECOMMENDS that:

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The motion to remand be GRANTED;

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The matter be REMANDED to the Fresno County Superior Court; and

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3.

Because the order remanding this matter to state court concludes this case, the Clerk of

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the Court be directed to close this matter.

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These Findings and Recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the

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Local Rules of Practice for the United States District Court, Eastern District of California. Within

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fourteen days after being served with these findings and recommendations, any may file written

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objections with the court. Such a document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Failure to file objections within the specified time may waive the

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right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated: September 30, 2011
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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