Wedgewood v. Saelee et al

Filing 4

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 5/15/15 RECOMMENDING that this action be summarily remanded to the Sacramento County Superior Court and that this case be closed. 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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WEDGEWOOD,

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No. 2:15-cv-1003 MCE DAD PS
Plaintiff,

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v.

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KAO SAELEE,

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FINDINGS AND RECOMMENDATIONS

Defendant.

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By Notice of Removal filed May 8, 2015, this unlawful detainer action was removed from

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the Sacramento County Superior Court by defendant Kao Saelee, who is proceeding pro se.

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Accordingly, the matter has been referred to the undersigned for all purposes encompassed by

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Local Rule 302(c)(21).

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However, it is well established that the statutes governing removal jurisdiction must be

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“strictly construed against removal.” Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064

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(9th Cir. 1979) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941)). See also

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Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002); Provincial Gov‟t of Martinduque v.

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Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). “Federal jurisdiction must be rejected if

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there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d

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564, 566 (9th Cir. 1992). “„The burden of establishing federal jurisdiction falls on the party

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invoking removal.‟” Harris v. Provident Life & Accident Ins. Co., 26 F.3d 930, 932 (9th Cir.
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1994) (quoting Gould v. Mut. Life Ins. Co., 790 F.2d 769, 771 (9th Cir.1986)). See also

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Provincial Gov‟t of Martinduque, 582 F.3d at 1087. In addition, “the existence of federal

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jurisdiction depends solely on the plaintiff‟s claims for relief and not on anticipated defenses to

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those claims.” ARCO Envtl. Remediation, LLC v. Dep‟t of Health & Envtl. Quality, 213 F.3d

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1108, 1113 (9th Cir. 2000). Where it appears, as it does here, that the district court lacks subject

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matter jurisdiction over a removed case, “the case shall be remanded.” 28 U.S.C. § 1447(c).

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In removing this action, defendant asserts that this court has original jurisdiction over the

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action because plaintiff‟s “claim” is based upon the “Protecting Tenants at Foreclosure Act of

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2009, 12 U.S.C. ' 5201.” (Notice of Removal (Dkt. No. 1) at 2.) However, it is evident from a

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reading of plaintiff‟s complaint filed in the Sacramento County Superior Court that this is nothing

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more than a garden-variety unlawful detainer action filed against the former owner of real

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property located in California and that it is based wholly on California law without reference to

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any claim under federal law. (Id. at 11.) As such, the complaint does not involve any “claim or

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right arising under the Constitution, treaties or laws of the United States” that would have

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permitted plaintiff to file this action originally in federal court. See 28 U.S.C. § 1441(b). It is

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also evident from defendant‟s Notice of Removal that any federal claims that could conceivably

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be presented in this action arise solely from defendant‟s own affirmative defenses and not from

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the plaintiff‟s unlawful detainer complaint. See ARCO Envtl. Remediation, LLC, 213 F.3d at

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1113. Thus, the defendant has failed to meet his burden of establishing a basis for federal

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jurisdiction over this action.

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Finally, the undersigned notes that it appears that this is the second time defendant has

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improperly removed this action to this federal court. Defendant first removed this action to this

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court on February 10, 2015. See Wedgewood v. Kao Saelee, No. 2:15-cv-0338 JAM CKD PS.

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In that previous action, the assigned Magistrate Judge issued findings and recommendations on

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February 18, 2015 recommending that the matter be summarily remanded to Sacramento County

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Superior Court for the same reasons as are noted above in these findings and recommendations.

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The prior action was remanded on March 23, 2015, when the District Judge assigned to that

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earlier action adopted the Magistrate Judge‟s February 18, 2015 findings and recommendations in

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full.

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In light of this history, defendant is cautioned that any future attempts to remove this

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action to this court will likely result in the imposition of sanctions against him. See Ryan Family

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Trust v. Chairez, No. 2:14-cv-0958 JAM KJN PS, 2014 WL 1665004, at *3 (E.D. Cal. Apr. 22,

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2014) (“Defendant is cautioned that any future improper removals may result in an award of costs

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and expenses to Plaintiff, and/or the imposition of any other appropriate sanctions”); Wells Fargo

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Bank, N.A. v. Lombera, No. C12-3496 HRL, 2012 WL 3249497, at *2 (N.D. Cal. Aug. 7, 2012)

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(recommending the imposition of sanctions where “defendants‟ litigation history establishes a

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troubling record of repeated removals of the same unlawful detainer action, in apparent disregard

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of the court‟s prior remand orders”); U.S. Bank Nat‟l Ass‟n v. Mikels, No. C12-00047 CW, 2012

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WL 506565, at *2 (N.D. Cal. Feb. 15, 2012) (awarding fees against a pro se defendant where the

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court had already remanded the case once, and then defendant removed the case a second time

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just before the state court was to hear summary judgment motions); see also 28 U.S.C. ' 1447(c)

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(“[a]n order remanding the case may require payment of just costs and any actual expenses,

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including attorney fees, incurred as a result of the removal.”).

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Accordingly, IT IS HEREBY RECOMMENDED that this action be summarily remanded
to the Sacramento County Superior Court and that this case be closed.

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These findings and recommendations will be 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. A document presenting objections

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should be titled “Objections to Magistrate Judge‟s Findings and Recommendations.” Any reply

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to objections shall be filed and served within seven days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court‟s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: May 15, 2015

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DAD:6
Ddad1\orders.pro se\wedgewood1003.ud.f&rs

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