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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DISCOVERY BANK,

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Plaintiff,

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No. 2:13-cv-1726 GEB CKD PS

v.

FINDINGS AND RECOMMENDATIONS

EUGENE KORTE,

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Defendant.

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This action was removed from state court.1 Removal jurisdiction statutes are strictly

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construed against removal. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir.

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1979). “Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the

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first instance.” Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). The party invoking removal

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bears the burden of establishing federal jurisdiction. Hunter v. Philip Morris USA, 582 F.3d 1039

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(9th Cir. 2009). Where it appears the district court lacks subject matter jurisdiction, the case shall

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be remanded. 28 U.S.C. § 1447(c).

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In conclusory fashion, the removal petition alleges the complaint is subject to federal

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question jurisdiction. Removal based on federal question jurisdiction is proper only when a

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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.
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federal question is presented on the face of the plaintiff’s properly pleaded complaint. Caterpillar

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Inc. v. Williams, 482 U.S. 386, 392 (1987). However, the exhibits attached to the removal

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petition establish the state court action is nothing more than a simple breach of contract action

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and the damages alleged are in the sum of $3,453.30. The state court action was also filed as a

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limited civil case, with damages not exceeding $10,000. As such, both federal question and

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diversity jurisdiction are lacking and the action was improvidently removed from state court.

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Defendant has failed to meet his burden of establishing federal jurisdiction and the matter should

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therefore be remanded. See generally Singer v. State Farm Mutual Automobile Insurance Co.,

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116 F.3d 373, 375-376 (9th Cir. 1997).

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Accordingly, IT IS HEREBY RECOMMENDED that the above-entitled action be
summarily remanded to the Superior Court of California, County of Solano.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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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. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within seven days after service of the objections. The parties are advised

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

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: August 27, 2013

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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4 discoverybank-korte.rem

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