Parkview Edge Properties, LLC v. Protzel

Filing 3

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 1/14/15 DENYING 2 Motion to Proceed IFP; and RECOMMENDING that this action be summarily remanded to the Superior Court of California, County of El Dorado. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days after being served with these findings and recommendations. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PARKVIEW EDGE PROPERTIES, LLC,

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No. 2: 15-cv-0070 TLN CKD PS

Plaintiff,
v.

ORDER AND

MONA PROTZEL,

FINDINGS AND RECOMMENDATIONS

Defendant.

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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 has failed to meet her burden of establishing

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federal jurisdiction and the matter should therefore be remanded. See generally Singer v. State

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Farm Mutual Automobile Insurance Co., 116 F.3d 373, 375-376 (9th Cir. 1997).

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Defendant has filed a motion to proceed in forma pauperis. Because the court will
recommend remand of this action, the motion will be denied without prejudice.
Accordingly, IT IS HEREBY ORDERED that defendant’s motion to proceed in forma
pauperis (ECF No. 2) is denied without prejudice; and
IT IS HEREBY RECOMMENDED that the above-entitled action be summarily remanded
to the Superior Court of California, County of El Dorado.

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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: January 14, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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4 parkview-protzel.remud.ifp

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