Pellegrini v. Fresno Superior Court et al

Filing 8

ORDER REMANDING CASE To Fresno County Superior Court Sua Sponte (ECF Nos. 2 , 3 , 4 , and 5 ), signed by District Judge Lawrence J. O'Neill on 10/20/2015. CASE CLOSED. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LILLIAN PELLEGRINI,

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Plaintiff,

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v.
FRESNO SUPERIOR COURT, et al.,

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Case No. 1:15-cv-01564-LJO-EPG
ORDER REMANDING CASE TO FRESNO
COUNTY SUPERIOR COURT SUA
SPONTE
(ECF Nos. 2, 3, 4, and 5)

Defendants.

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I.

INTRODUCTION

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On October 14, 2015, pro se Plaintiff Lillian Pellegrini (“Plaintiff”) filed a Notice of

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Removal removing a probate case from Fresno County Superior Court. (ECF No. 1.) On that

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same date, Plaintiff filed an application to proceed in forma pauperis (“IFP”), a Motion to Seal

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the case, a Motion to Dismiss the state action, and a Motion for Injunction. (ECF Nos. 2, 3, 4, 5.)

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Plaintiff asserts that removal of the case is proper because it implicates “14th Amendment rights

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regarding property and a denial of an opportunity to be heard to oppose false statements of fact

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and law being upheld since inception.” (Request for Transfer to Federal Court 28 USC 1441 2:2-

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5, ECF No. 2.) She also claims that a federal question is raised in the case under 28 U.S.C. §§

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1392 and 1395. Id. The case has been proceeding in Fresno County Superior Court since 2010. Id.

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II.

LEGAL STANDARD

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A district court has “a duty to establish subject matter jurisdiction over [a] removed action

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sua sponte, whether the parties raise[ ] the issue or not.” United Investors Life Ins. Co. v. Waddell

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& Reed, Inc., 360 F.3d 960, 967 (9th Cir. 2004). The removal statute, 28 U.S.C. § 1441, must be

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“strictly construed against removal jurisdiction.” Provincial Gov’t of Marinduque v. Placer

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Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). Under the removal statute, a removing party

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must file a notice of removal of a civil action within 30 days of receipt of a copy of the initial

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pleading. 28 U.S.C. § 1446(b). A defendant thus “bears the burden of establishing that removal is

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proper.” Id. As a result, any ambiguities should be resolved “in favor of remand to state court.”

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Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009). A district court must remand

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an action to state court for lack of subject matter jurisdiction or a defect in the removal procedure.

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28 U.S.C. § 1447(c). Any defects in the Court’s subject matter jurisdiction require remand; the

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duty to remand under 28 U.S.C. § 1447(c) is “mandatory, not discretionary.” Bruns v. NCUA, 122

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F.3d 1251, 1257 (9th Cir. 1997).

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A party may remove an action to federal court where that action “falls within the original

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‘federal question’ jurisdiction of the United States district courts.” Franchise Tax Bd. v. Constr.

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Laborers Vacation Trust for S. Cal., 463 U.S. 1, 8 (1983), citing 28 U.S.C. § 1331. Determination

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of federal question jurisdiction “is governed by the ‘well-pleaded complaint rule,’ which provides

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that federal jurisdiction exists only when a federal question is presented on the face of plaintiff’s

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properly pleaded complaint.” California v. United States, 215 F.3d 1005, 1014 (9th Cir. 2000),

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quoting Audette v. Int’l Longshoremen’s & Warehousemen’s Union, 195 F.3d 1107, 1111 (9th

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Cir. 1999). It is not enough to “show that a federal question lurks somewhere inside the parties’

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controversy.” Vaden v. Discover Bank, 556 U.S. 49, 70 (2009). Rather, courts must determine

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federal jurisdiction based solely on what “necessarily appears in the plaintiff’s statement of his

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own claim in the bill or declaration, unaided by anything in anticipation of avoidance of defenses

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which it is thought the defendant may interpose.” California, 215 F.3d at 1014.

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Generally, subject matter jurisdiction can be established in three ways: 1) a federal

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question is presented; 2) diversity of citizenship is established (the matter in controversy exceeds
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$75,000 and is between citizens of different states); or 3) the United States is a party. 28 U.S.C.

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§§ 1331 and 1332; see also Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994); Finley v.

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United States, 490 U.S. 545 (1989). Plaintiff has failed to establish that federal jurisdiction is

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proper. The United States is not a party to this action. Similarly, Plaintiff cannot establish that a

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federal question has been presented or that there is diversity between the parties. Finally,

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Plaintiff’s Notice of Removal is procedurally defective and the case must be remanded.

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III.

DISCUSSION

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A. Plaintiff’s Notice of Removal is Defective and Improper

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As an initial matter, the Court finds that Plaintiff’s Notice of Removal lacks the required

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short and plain statement of removal. The Notice attempts to invoke federal question jurisdiction,

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but does not explain how the Court has original jurisdiction over the state court action. Moreover,

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28 U.S.C. § 1446(a) requires that the moving party’s notice of removal must be accompanied by

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“a copy of all process, pleadings, and orders served upon such defendant or defendants in such

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action.” Plaintiff has not attached any such pleadings, nor does Plaintiff even attach a copy of the

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complaint or any other initial pleading in this case. Plaintiff has failed to comply with this

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requirement and the Notice is thus defective.

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The Notice is also untimely. A notice of removal must be filed within thirty days of

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receipt or service of the initial pleading or summons in a state court action (28 U.S.C. §

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1446(b)(2)(B)) or, if the case was not initially removable, within thirty days of receipt by

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defendant of “a copy of an amended pleading, motion, order or other paper from which it may

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first be ascertained that the case is one which is or has become removable.” 28 U.S.C. §

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1446(b)(3). According to the Notice of Removal, Plaintiff has been actively litigating the state

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court action since at least 2010, five years before the filing of the Notice of Removal. Based on

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these procedural defects alone, the case must be remanded to Fresno County Superior Court.

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Sladek v. Bank of America, N.A., No. 13-cv-03094-PAB-MEH, 2015 WL 5026193, at *2 (D.

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Colo. Aug. 25, 2015).

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B. Plaintiff Fails to Demonstrate Federal Question Jurisdiction

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Even if Plaintiff’s Notice of Removal were not defective, she would be unable to

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demonstrate that this Court has jurisdiction to hear her claims. The record indicates that Plaintiff

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is litigating a state court action involving the disposition of assets under the California Probate

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Code. Plaintiff asserts federal question jurisdiction exists because “a final ruling in Fresno State

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Court” has resulted in “violations of 14th Amendment rights regarding property and a denial of an

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opportunity to be heard to oppose false statements of fact and law being upheld since inception.”

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(ECF No. 1.) She also asserts that a federal question is raised under 28 U.S.C. §§ 1392 and 1395.

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But a removing party cannot create federal jurisdiction through the mere invocation of a federal

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statute in her notice of removal or via a cross-complaint. Caterpillar, Inc. v. Williams, 482 U.S.

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386, 393 (1987) (“it is now settled law that a case may not be removed to federal court on the

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basis of a federal defense…even if the defense is anticipated in the plaintiff’s complaint, and even

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if both parties concede that the federal defense is the only question truly at issue”).

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Nor is it clear that the cited statutes or rights are implicated in this case. As explained

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above, federal question jurisdiction is determined from the face of plaintiff’s “properly pleaded

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complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Plaintiff’s failure to attach a

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copy of the complaint (or other initial pleading) from the state action has thus deprived the Court

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of any opportunity to evaluate the propriety of her assertion of federal jurisdiction on these

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grounds—the Court cannot find that federal question jurisdiction exists based solely on the

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recitation of these statutes in the Notice of Removal.1

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Based on the Notice of Removal, the state court action appears to involve the disposition

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of assets in a probate case. Such matters do not fall within the purview of federal jurisdiction.

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Wells Fargo Bank, N.A. v. Stern, No. C 02-5126 SI, 2003 WL 22114268, at *2 (N.D. Cal. Sept. 8,

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2003) (“A federal court’s equity jurisdiction does not include the authority to decide cases which

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would require it to, ‘interfere with the probate proceedings or assume general jurisdiction of the

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Neither of the statutes appears to implicate a federal cause of action that would be applicable in this context, in any
case. Section 1392 was repealed in 2011 (Pub. L. 112-63, § 203, 125 Stat. 764) and section 1395 relates to venue for
civil forfeiture actions.

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probate or control of the property in the custody of the state court’”), quoting Markham v. Allen,

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326 U.S. 490, 494 (1946).

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C. Plaintiff Fails to Demonstrate Diversity Jurisdiction

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Title 28, section 1332(a) of the United States Code establishes diversity jurisdiction and

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provides, in part: “The district courts shall have original jurisdiction of all civil actions where the

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matter in controversy exceeds the sum or value of $75,000 . . . and is between . . . (1) citizens of

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different States . . .” In a federal action, a defendant “bears the burden of actually proving the

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facts to support jurisdiction, including the jurisdictional amount.” Sanchez v. Monumental Life

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Ins., 102 F.3d 398, 403 (9th Cir. 1996).

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In this case, the parties are not citizens of different states. Diversity requires that “the

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citizenship of each plaintiff” be “diverse from the citizenship of each defendant.” Caterpillar, Inc.

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v. Lewis, 519 U.S. 61, 68 (1996). An “individual is a citizen of the state in which he is domiciled;

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domicile is determined by an individual’s 1) residence in a state, and 2) his intent to remain

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indefinitely.” Boon v. Allstate Ins. Co., 229 F.Supp.2d 1016, 1019 (C.D. Cal. 2002), citing Kanter

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v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). According to the Notice of Removal,

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Plaintiff is domiciled in Fresno, California and at least one of the Defendants, Marlene Merchant,

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is domiciled in Murieta, California. (ECF No. 1.) The Court thus cannot find jurisdiction based on

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diversity.

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Finally, in removal cases where the purported basis of jurisdiction is diversity jurisdiction,

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removal is not permitted where a defendant is a citizen of the state in which the plaintiff

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originally brought the action (even if the opposing parties are citizens of different states). See 28

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U.S.C. § 1441(b). Thus, removal based on diversity jurisdiction is not permitted in this instance.

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D. Plaintiff’s Other Motions

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As explained above, Plaintiff has also filed an Application to Proceed In Forma Pauperis,

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a Motion to Dismiss, a Motion for Injunctive Relief, and a Motion to Seal her case. (ECF Nos. 2,

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3, 4, 5.) In light of this Court’s lack of jurisdiction, all of these motions are denied as moot. The

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motions are also denied for the following reasons.

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Plaintiff’s Application to Proceed In Forma Pauperis is incomplete; to apply to proceed

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IFP, a plaintiff must submit an affidavit that “state[s] the facts as to [the] affiant’s poverty with

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some particularity, definiteness and certainty.” Jefferson v. United States, 277 F.2d 723, 725 (9th

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Cir. 1960) (“The right to proceed in forma pauperis is not an unqualified one. It is a privilege,

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rather than a right”); United States v. Shadley, No. 2:09-MC-80 WBS GGH, 2010 WL 2509910,

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at *1 (E.D. Cal. June 17, 2010) (denying request to proceed IFP where applicant “failed to

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adequately document her financial status”). Plaintiff, however, has not answered questions 2(b)

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(requiring the dates of her last employment, amount of take-home pay, and name and address of

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her last employer); 3 (requiring a list of the sources of her income); or 6 (requiring the names,

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relationships, and amount of support provided to any persons who are dependent on her for

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support) and has offered incomplete answers in response to questions 4 (requiring her to state the

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amounts that she currently has in cash or in checking or savings accounts) and 5 (requiring her to

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describe and valuate any real estate, stocks, bonds, securities, other financial instruments,

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automobiles, or other things of value in her possession).

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Moreover, Plaintiff’s Motion to Seal does not make the requisite showing to place the case

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under seal. Under Local Rule 141(b), a request to seal documents must “set forth the statutory or

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other authority for sealing, the requested duration, the identity, by name or category, of person to

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be permitted access to the documents, and all other relevant information.” The only information

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Plaintiff has furnished is an oblique reference to an order by Fresno County Superior Court. Even

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if there is an existing protective order in a state court action, however, Plaintiff must make a

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specific request for an order sealing her case here. Local Rule 141(a) (“specific requests to seal

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must be made even if an existing protective order, statute, or rule requires or permits the sealing

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of the document”).

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Finally, because the Court has determined that it lacks subject matter jurisdiction over this

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case, it is unable to provide the relief sought in Plaintiff’s Motion for Injunctive Relief or Motion

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to Dismiss. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103-04 (1998) (“[The] triad of

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injury in fact, causation, and redressability constitutes the core of Article III’s case-or-controversy

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requirement, and the party invoking federal jurisdiction bears the burden of establishing its
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existence”); Zepeda v. United States Immigration Serv., 753 F.2d 719, 727 (9th Cir. 1985) (“A

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federal court may issue an injunction if it has personal jurisdiction over the parties and subject

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matter jurisdiction over the claim; it may not attempt to determine the rights of persons not before

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the court”). Nor has Plaintiff fulfilled the procedural requirements under Local Rule 231 in

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seeking injunctive relief.

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IV.

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ORDER
For the reasons described above, IT IS HEREBY ORDERED that:

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1. This case is REMANDED to Fresno County Superior Court;

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2. Plaintiff’s Application to Proceed In Forma Pauperis (ECF No. 2) is DENIED;

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3. Plaintiff’s Motion to Seal (ECF No. 5) is DENIED;

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4. Plaintiff’s Motion to for Injunctive Relief (ECF No. 4) is DENIED;

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5. Plaintiff’s Motion to Dismiss (ECF No. 3) is DENIED.

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IT IS SO ORDERED
Dated: October 20, 2015
/s/ Lawrence J. O’Neill
United States District Judge

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