Sodano v. Chase Manhattan Bank USA, N.A.

Filing 4

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 03/06/12 ORDERING that the 2 Motion to Proceed IFP is GRANTED and RECOMMENDING that this case be remanded to the Superior Court of California, County of Riverside. Objections to these F&Rs due within 14 days; 1 Complaint referred to Judge Garland E. Burrell, Jr. (Benson, A.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIFFANY SODANO,

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Plaintiff,

No. 2:12-cv-00425 GEB KJN PS

v.
CHASE MANHATTAN BANK USA,
NA (previously known as Bank One
Card Services),

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Defendant.

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ORDER and FINDINGS AND
RECOMMENDATIONS
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On February 17, 2012, plaintiff, who is proceeding without counsel, filed a

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document entitled Notice of Removal of Civil Action From State Court (“Notice of Removal”).1

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Presently before the court is plaintiff’s application to proceed in forma pauperis (Dkt. No. 2).

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For the reasons stated below, the undersigned grants plaintiff’s application to proceed in forma

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pauperis, but recommends that this action be remanded to the Superior Court of California for the

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County of Riverside (“Superior Court”). Although there are numerous deficiencies in plaintiff’s

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removal of this case to federal court, a plaintiff may not remove an action to federal court. See

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28 U.S.C. § 1441(a).

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This case proceeds before the undersigned pursuant to Eastern District of California Local
Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
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Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C.

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§ 1915. Plaintiff’s application and declaration make the showing required by 28 U.S.C.

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§§ 1915(a)(1) and 1915(2). Accordingly, the undersigned grants plaintiff’s request to proceed in

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forma pauperis.

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The determination that a plaintiff may proceed in forma pauperis does not

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complete the inquiry. The court is also required to screen complaints brought by parties

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proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d

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1122, 1129 (9th Cir. 2000) (en banc). Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to

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dismiss a case filed pursuant to the in forma pauperis statute if, at any time, it determines that the

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allegation of poverty is untrue, the action is frivolous or malicious, the complaint fails to state a

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claim on which relief may be granted, or the action seeks monetary relief against an immune

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defendant.

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Relevant here, plaintiff asserts that she filed the underlying, removed action in the

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Superior Court on January 6, 2012.2 (Notice of Removal ¶ 13.) On February 17, 2012, plaintiff

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filed the Notice of Removal of her Superior Court case to this court.

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The undersigned recommends that plaintiff’s case be remanded to the Superior

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Court because a plaintiff may not remove an action to federal court. As provided in 28 U.S.C.

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§ 1441(a), civil actions over which the court has jurisdiction “may be removed by the defendant

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or defendants.” Accord 28 U.S.C. § 1446(a) (listing the documents that a “defendant or

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defendants desiring to remove any civil action” to federal court must file to effectuate the

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removal); see also Am. Int’l Underwriters (Philippines), Inc. v. Continental Ins. Co., 843 F.2d

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1253, 1260 (9th Cir. 1988) (“The right to remove a state court case to federal court is clearly

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limited to defendants.”); accord Sharp v. Bick, 403 Fed. Appx. 204 (9th Cir. 2010). Plaintiff

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simply was not entitled to remove the underlying action to federal court, and this matter should

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The present case arises out of an action that plaintiff filed against defendant’s predecessor
in interest in the Superior Court in 2005. (See Notice of Removal ¶ 1.)
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be remanded to the Superior Court. See 28 U.S.C. § 1447(c).
For the foregoing reasons, IT IS HEREBY ORDERED that plaintiff’s application
to proceed in forma pauperis (Dkt. No. 2) is granted.

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It is FURTHER RECOMMENDED that:

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1.

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of Riverside; and

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2.

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These findings and recommendations are submitted to the United States District

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This case be remanded to the Superior Court of California for the County

The Clerk of Court be directed to close this case and vacate all dates.

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). 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. Id.; see also E. Dist. Local Rule 304(b).

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Such a document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any response to the objections shall be filed with the court and served on

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all parties within fourteen days after service of the objections. E. Dist. Local Rule 304(d).

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Failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d

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1153, 1156-57 (9th Cir. 1991).

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IT IS SO ORDERED AND RECOMMENDED.
DATED: March 6, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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