Evenbach v. Commissioner of Social Security

Filing 6

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 10/30/2017 ORDERING the Clerk shall randomly assign a United States District Judge to this action. IT IS HEREBY RECOMMENDED that this matter be dismissed without prejudice. The Clerk of Court be directed to closed this case and vacate all future dates. Referred to Judge Troy L. Nunley. Objections to F&R due within 14 days. (Zignago, K.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VADIM EVENBACH, 12 Plaintiff, 13 14 15 No. 2:17-cv-02174-KJN v. ORDER AND FINDINGS AND RECOMMENDATIONS COMMISSIONER OF SOCIAL SECURITY, Defendant. 16 17 On October 18, 2017, defendant filed a notice, removing this Social Security action from 18 19 California State Court to the United States District Court, pursuant to 28 U.S.C. §§ 1441 and 20 1442.1 (ECF No. 1.) Previously, on October 12, 2017, this matter was dismissed for lack of 21 jurisdiction by the Sacramento County Superior Court – Small Claims Division. (See ECF No. 5; 22 Case No. 17SC03292.) As a result, when defendant filed the notice of removal, there was no 23 open case to remove to federal court. Therefore, the court concludes that removal was not 24 appropriate and this matter should be dismissed without prejudice.2 25 1 26 27 28 Because plaintiff proceeds pro se, this case was referred to the undersigned pursuant to E.D. Cal. L.R. 302(c)(21). 2 Dismissal of this case will not affect plaintiff’s ability to appeal the decision of the Commissioner of Social Security, if such appeal is otherwise available. 1 1 Accordingly, it is HEREBY ORDERED that the Clerk of Court shall randomly assign a 2 United States District Judge to this action, in light of the following findings and 3 recommendations. 4 Furthermore, it is HEREBY RECOMMENDED that: 5 1. This matter be DISMISSED without prejudice. 6 2. The Clerk of Court be directed to closed this case and vacate all future dates. 7 These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 9 days after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 12 shall be served on all parties and filed with the court within fourteen (14) days after service of the 13 objections. The parties are advised that failure to file objections within the specified time may 14 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 15 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 16 17 IT IS SO ORDERED AND RECOMMENDED. Dated: October 30, 2017 18 19 14/ss.17-2174.evenbach.F&R.dismissal 20 21 22 23 24 25 26 27 28 2

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