Parsons v. Covello

Filing 3

ORDER REMANDING 1 Action to Stanislaus County Superior Court; ORDER DENYING AS MOOT Defendant's 2 Motion to Proceed In Forma Pauperis signed by Magistrate Judge Sheila K. Oberto on 5/25/2011. CASE CLOSED. Copy of remand order sent to Stanislaus County Superior Court. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JOSEPH PARSONS,

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CASE NO. 1:11-cv-00806-LJO-SKO
Plaintiff,

ORDER REMANDING ACTION TO
STANISLAUS COUNTY SUPERIOR
COURT

v.

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(Docket No. 1)
JENNIFER COVELLO,

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ORDER DENYING AS MOOT
DEFENDANT'S MOTION TO
PROCEED IN FORMA PAUPERIS

Defendant.
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(Docket No. 2)

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I. INTRODUCTION
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On May 17, 2011, Defendant Jennifer Covello ("Defendant") filed a document entitled
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"NOTICE AND MOTION OF REMOVAL OF STATE COURT ACTION (STANISLAUS
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COUNTY SUPERIOR COURT) TO US DISTRICT COURT (EASTERN DISTRICT OF
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CALIFORNIA)" (the "May 17, 2011, Notice"). (Doc. No. 1.) The May 17, 2011, Notice alleges that
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the basis of removal is 28 U.S.C. § 1331 Federal Question Jurisdiction. On that same day,
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Defendant filed a motion to proceed without the prepayment of fees. (Doc. 2.)
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For the reasons set forth below, Defendant's motion for removal is DENIED and the action
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is remanded to the Stanislaus Superior Court. As a result, Defendant's motion to proceed in forma
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pauperis is DENIED AS MOOT.
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II. DISCUSSION
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Defendant’s Motion for Removal is Denied and the Case is Remanded

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Title 28 of the United States Code, section 1441(a) provides that "any civil action brought

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in a State court of which the district courts of the United States have original jurisdiction, may be

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removed by the defendant or the defendants, to the district court of the United States for the district

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and division embracing the place where such action is pending." A district court has "a duty to

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establish subject matter jurisdiction over the removed action sua sponte, whether the parties raised

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the issue or not." United Investors Life Ins. Co. v. Waddell & Reed, Inc., 360 F.3d 960, 967 (9th Cir.

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2004). "If at any time prior to judgment it appears that the district court lacks subject matter

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jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). The removal statute is strictly

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construed against removal jurisdiction. Geographic Expeditions, Inc. v. Estate of Lhotka, 599 F.3d

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1102, 1107 (9th Cir. 2010); Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083,

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1087 (9th Cir. 2009). The court presumes that a case lies outside the limited jurisdiction of the

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federal courts, and the burden of establishing the contrary rests upon the party asserting jurisdiction.

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Geographic Expeditions, 599 F.3d at 1106-07; Hunter v. Philip Morris USA, 582 F.3d 1039, 1042

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(9th Cir.2009).

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The underlying complaint filed in the Stanislaus County Superior Court has not been

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provided to this court. Title 28 U.S.C. § 1446(a) provides that a copy of all pleadings served on the

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removing defendant in the state court action must be filled along the notice of removal. Because the

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complaint at issue has not been provided to this Court, Plaintiff has failed to comply with Section

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1446(a). As such, the Court is unable to identify the federal law at issue.

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From the May 17, 2011, Notice, it appears that this action concerns the rental of real property

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and contractual obligations concerning that property.1 Nothing in the May 17, 2011, Notice indicates

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that the underlying complaint contains claims concerning anything other than a rental agreement and

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Plaintiff's attempts to vacate Defendant from the property. The May 17, 2011, Notice states that

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third parties in the Stanislaus County Superior Court have violated Defendant's constitutional rights

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The Court notes that Defendant’s motion purports to attach a copy of the contract as "Exhibit 1"; however,
there was no exhibit attached to the submitted papers.

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and Plaintiff has violated Defendant's rights under the Fair Housing Act. Removal cannot be based

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on a defense, counterclaim, cross-claim, or third party claim raising a federal question, whether filed

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in state or federal court. See Vaden v. Discover Bank, __ U.S. __, 129 S.Ct. 1262, 1272 (2009);

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Hunter, 582 F.3d at 1042-43; Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 327

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(5th Cir. 1998); Preciado v. Ocwen Loan Servicing, No. CV 11-1487 CAS (VBKx), 2011 WL

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977819, at *1 (C.D.Cal. Mar. 18, 2011); Fed. Nat'l Mortg. Ass'n. v. Bridgeman, No. 2:10-cv-02619

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JAM KJN PS, 2010 WL 5330499, at *4 (E.D.Cal. Dec. 20, 2010). There is, therefore, no basis for

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federal jurisdiction to permit removal, and as such, this action is remanded to the Stanislaus County

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Superior Court.

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B.

Defendant's Motion to Proceed In Forma Pauperis is Moot

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Defendant filed a motion to proceed without the prepayment of fees. (Doc. 2.) In light of

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the Court's finding that it lacks subject matter jurisdiction, Defendant's motion to proceed in forma

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pauperis is denied as moot.

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III.

CONCLUSION

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In sum, the May 17, 2011, Notice provides no basis for federal jurisdiction, and the implied

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basis of federal jurisdiction is not a proper basis for removal. Accordingly, the Court HEREBY

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ORDERS THAT:

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1.

This action is REMANDED to the Stanislaus County Superior Court;

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2.

Defendant’s motion to proceed in forma pauperis is DENIED AS MOOT; and

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3.

The Clerk of the Court is DIRECTED to serve a copy of this order on the Stanislaus

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County Superior Court.

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IT IS SO ORDERED.

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Dated:
ie14hj

May 25, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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