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