McCullum v. Trotty

Filing 4

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/3/14 ORDERING that the 2 Motion to Proceed IFP is GRANTED and RECOMMENDING that this action be remanded to the San Joaquin Superior Court. Referred to Judge John A. Mendez. Objections due within 14 days. (Manzer, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEREK McCULLUM,

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Plaintiff,

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No. 2:14-cv-2524 JAM CKD PS

v.

ORDER AND

ANITA TROTTY,

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FINDINGS AND RECOMMENDATIONS

Defendant.

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Defendant is proceeding in this action pro se. Defendant has requested authority pursuant

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to 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by

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Local Rule 302(c)(21).
Defendant has submitted the affidavit required by § 1915(a) showing that defendant is

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unable to prepay fees and costs or give security for them. Accordingly, the request to proceed in

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forma pauperis will be granted. 28 U.S.C. § 1915(a).

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This action was removed from state court. 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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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 unlawful detainer action,

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and the state court action is titled as such. Defendant also asserts that diversity jurisdiction is

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proper. However, it is evident from the pleadings that both plaintiff and defendant are citizens of

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the same state. Diversity jurisdiction is therefore lacking. Defendant has failed to meet her

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burden of establishing federal jurisdiction and the matter should therefore be remanded. See

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generally Singer v. State Farm Mutual Automobile Insurance Co., 116 F.3d 373, 375-376 (9th

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Cir. 1997).

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Accordingly, IT IS HEREBY ORDERED that defendant’s request to proceed in forma
pauperis (ECF No. 2) is granted; and
IT IS HEREBY RECOMMENDED that the above-entitled action be summarily remanded
to the Superior Court of California, County of San Joaquin.

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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: November 3, 2014

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4 mccullum.remud

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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