ING Bank, fsb v Mikels

Filing 21

ORDER signed by Judge Kimberly J. Mueller on 3/23/2012 ADOPTING 15 Findings and Recommendations; REMANDING CASE to Superior Court of California, County of Siskiyou. Copy of remand order sent to other court. CASE CLOSED. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ING BANK, FSB,
Plaintiff,

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No. CIV S-11-2400-KJM-CMK

vs.

ORDER

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MARSHALL-EDWARDS MIKELS, et al.,

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Defendants.
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This action was removed to this court from the Siskiyou County Superior Court

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by the defendants, proceeding in propria persona. The matter was referred to a United States

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Magistrate Judge as provided by Eastern District of California local rules.

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On December 2, 2011, the magistrate judge filed findings and recommendations,

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which were served on the parties and which contained notice that the parties may file objections

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within a specified time. Defendants have filed timely objections to the findings and

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recommendations. (ECF 18.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule

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304, this court has conducted a de novo review of this case. In their objections, defendants

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request a hearing before a district judge as they have declined the jurisdiction of the magistrate
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judge. This request is denied. Local Rule 302(c)(21) provides that “[i]n Sacramento, all actions

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in which all the plaintiffs or defendants are proceeding in propria persona” are handled by the

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magistrate judge assigned to the case. The court notes that in their declaration, defendants

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contend they are not proceeding in propria persona, but that defendant Marshall Mikels

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appeared as “A Private Living Sovereign Man by Special Appearance Rogatory as the

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Authorized Representative for Defendant(s),” which makes him “an attorney in fact.” (Mikels

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Decl. at 5, ECF 16.) “In propria persona” in Latin means “in one’s own person” and is

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synonymous with “pro se” which means “[f]or oneself; on one’s own behalf; without a lawyer.”

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BLACK’S LAW DICTIONARY (9th ed. 2009). Defendant Marshall Mikels is not an attorney;1

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defendants are proceeding without a lawyer. Therefore, defendants are proceeding in propria

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persona. Defendants also maintain that the hearing on this motion should have been rescheduled

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as they were traveling and that they should have been allotted more time to file an opposition to

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the motion. (Mikels Decl. at 6.) It is well established that the court may reasonably control its

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docket. Moreover, defendants were not prejudiced as they had ample time to submit an

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opposition: plaintiff filed its motion on September 21, 2011, the hearing took place on

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December 1, 2011, and defendants were traveling from November 10, 2011 to November 24,

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2011. Defendants’ other contentions go to the merits of plaintiff’s complaint and are not

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appropriately considered here.
The Ninth Circuit “strictly construe[s] the removal statute against removal

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jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis, 863,

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F.2d 662, 663 (9th Cir. 1988); Takeda v. Northwestern Nat’l Life Ins. Co., 765 F.2d 815, 818

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(9th Cir. 1985)). There is a “strong presumption” against removal jurisdiction, which “means

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that the defendant always has the burden of establishing that removal is proper.” Gaus, 980 F.2d

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at 566. “If at any time before final judgment it appears that the district court lacks subject matter

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For a list of requirements to practice law in California, defendants may wish to consult
the California State Bar’s website.
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jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). As set out in the findings and

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recommendations, defendants have not established that removal was proper. Specifically,

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although defendants contend that the amount in controversy exceeds $75,000 because the

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property is valued at $270,000 (Opp’n at 11, ECF 18), plaintiff’s complaint states a claim for

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unlawful detainer and seeks less than $10,000 in damages (Mot. at 2, ECF 3-1). In determining

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the amount in controversy for purposes of removal jurisdiction, the court looks to the amount

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stated in the complaint, not at the value of possible counterclaims. See Dir. RLA v. Cape Cod

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Biolab Corp., No. C-01-3675 PJH, 2001 U.S. Dist. LEXIS 20294, at *7-8 (N.D. Cal. Nov. 30,

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2001).

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Having carefully reviewed the file, the court finds the findings and

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recommendations to be supported by the record and by the proper analysis. Accordingly, IT IS

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HEREBY ORDERED that:

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The findings and recommendations filed December 2, 2011, are adopted in

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2.

Plaintiff’s motion to remand (ECF 3) is granted;

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3.

This matter is remanded to the Superior Court of California, County of

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This case is closed.

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full;

Siskiyou; and

DATED: March 23, 2012.

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UNITED STATES DISTRICT JUDGE

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