Discovery Bank v. Korte

Filing 5

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/27/13 RECOMMENDING that this Action be summarily remanded to the Superior Court of California, County of Solano re 1 Notice of Removal. These Findings and Recommendations are submitted to U.S. District Judge Garland E. Burrell, Jr. Objections to these F&R due within fourteen days.(Mena-Sanchez, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DISCOVERY BANK, 12 Plaintiff, 13 14 No. 2:13-cv-1726 GEB CKD PS v. FINDINGS AND RECOMMENDATIONS EUGENE KORTE, 15 Defendant. 16 17 This action was removed from state court.1 Removal jurisdiction statutes are strictly 18 construed against removal. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 19 1979). “Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the 20 first instance.” Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). The party invoking removal 21 bears the burden of establishing federal jurisdiction. Hunter v. Philip Morris USA, 582 F.3d 1039 22 (9th Cir. 2009). Where it appears the district court lacks subject matter jurisdiction, the case shall 23 be remanded. 28 U.S.C. § 1447(c). 24 In conclusory fashion, the removal petition alleges the complaint is subject to federal 25 question jurisdiction. Removal based on federal question jurisdiction is proper only when a 26 27 28 1 Plaintiff also filed a motion to proceed in forma pauperis. Because the court will recommend that the action be remanded to state court, the court declines to address plaintiff’s motion at this time. 1 1 federal question is presented on the face of the plaintiff’s properly pleaded complaint. Caterpillar 2 Inc. v. Williams, 482 U.S. 386, 392 (1987). However, the exhibits attached to the removal 3 petition establish the state court action is nothing more than a simple breach of contract action 4 and the damages alleged are in the sum of $3,453.30. The state court action was also filed as a 5 limited civil case, with damages not exceeding $10,000. As such, both federal question and 6 diversity jurisdiction are lacking and the action was improvidently removed from state court. 7 Defendant has failed to meet his burden of establishing federal jurisdiction and the matter should 8 therefore be remanded. See generally Singer v. State Farm Mutual Automobile Insurance Co., 9 116 F.3d 373, 375-376 (9th Cir. 1997). 10 11 Accordingly, IT IS HEREBY RECOMMENDED that the above-entitled action be summarily remanded to the Superior Court of California, County of Solano. . 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 14 after being served with these findings and recommendations, any party may file written 15 objections with the court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 17 shall be served and filed within seven days after service of the objections. The parties are advised 18 that failure to file objections within the specified time may waive the right to appeal the District 19 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 Dated: August 27, 2013 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 21 22 23 24 4 discoverybank-korte.rem 25 26 27 28 2

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