Anderson Place Associates I, LP v. Bartholomew
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 5/6/2011 RECOMMENDING 2 that Defendants motion to proceed in forma pauperis be denied; Pltf's 7 Motion for remand be granted; and this action be remanded to the Superior Court of California, County of Yolo; Referred to Judge Garland E. Burrell, Jr.; Objections due 14 days after being served with these F & R's. (Reader, L)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ANDERSON PLACE
ASSOCIATES I, L.P.,
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Plaintiff,
No. CIV S-10-3098 GEB DAD PS
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vs.
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NINA BARTHOLOMEW,
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Defendant.
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FINDINGS AND RECOMMENDATIONS
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Defendant Nina Bartholomew, proceeding pro se, removed this unlawful detainer
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action from state court and applied for leave to proceed in forma pauperis. The matter came
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before the court on May 6, 2011, for hearing of plaintiff’s motion for remand. Shawn K.
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Bankson, Esq. appeared for plaintiff. Defendant did not file opposition to plaintiff’s motion and
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did not appear at the hearing of the motion.
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It is well established that the statutes governing removal jurisdiction must be
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“strictly construed against removal.” Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064
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(9th Cir. 1979) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941)).
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“Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first
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instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). “‘The burden of establishing
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federal jurisdiction falls on the party invoking removal.’” Harris v. Provident Life & Accident
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Ins. Co., 26 F.3d 930, 932 (9th Cir. 1994) (quoting Gould v. Mut. Life Ins. Co., 790 F.2d 769,
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771 (9th Cir.1986)). Moreover, “the existence of federal jurisdiction depends solely on the
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plaintiff’s claims for relief and not on anticipated defenses to those claims.” ARCO Envtl.
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Remediation, LLC v. Dep’t of Health & Envtl. Quality, 213 F.3d 1108, 1113 (9th Cir. 2000).
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Where it appears, as it does here, that the district court lacks subject matter jurisdiction over a
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removed case, “the case shall be remanded.” 28 U.S.C. § 1447(c).
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In conclusory fashion, defendant alleges in her notice of removal that federal
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question jurisdiction exists because “[t]he complaint involves rights and duties with respect to a
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federally sponsored and subsidized housing project.” (Notice of Removal (Doc. No. 1) at 2.)
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However, the exhibits attached to the notice of removal establish that the state court action is
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nothing more than a garden-variety unlawful detainer action, and the state court action is titled as
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such. Plaintiff’s unlawful detainer action, filed against a tenant of real property located in
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California and based wholly on California law, does not involve any “claim or right arising under
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the Constitution, treaties or laws of the United States” that would have permitted plaintiff to file
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this action originally in federal court. 28 U.S.C. § 1441(b).
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Defendant has failed to meet her burden of establishing federal jurisdiction, and
the action should therefore be remanded.
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Accordingly, IT IS HEREBY RECOMMENDED that:
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1. Defendant’s motion to proceed in forma pauperis (Doc. No. 2) be denied;
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2. Plaintiff’s motion for remand (Doc. No. 7) be granted; and
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3. This action be remanded to the Superior Court of California, County of Yolo.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen
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days after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. A document presenting objections
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should be titled “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply
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to objections shall be filed and served within seven days after service of the objections. The
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parties are advised that failure to file objections within the specified time may, under certain
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circumstances, waive any right to appeal the District Court’s order. See Martinez v. Ylst, 951
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F.2d 1153 (9th Cir. 1991).
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DATED: May 6, 2011.
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DAD:kw
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