(PC) Mitchell v. Piffer et al
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/16/20 RECOMMENDING that plaintiff's motion for remand 20 be denied. Motion 20 referred to Judge William B. Shubb. Objections due within 14 days. (Plummer, M)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:18-cv-2949-WBS-EFB P
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding without counsel, brought this action in the Amador
County Superior Court. ECF No. 1. Defendant removed the case to this court on November 9,
2018 (id.) and, on January 16, 2020, it was dismissed without leave to amend for failure to state a
cognizable claim. ECF No. 18. No appeal was taken.
Now, plaintiff has filed a motion to remand this closed case to the superior court. ECF
No. 20. Therein, he argues that, since the dismissal in this court, he has unsuccessfully attempted
to reopen the state court case that was removed. Id. at 2-4. This motion must be denied for two
First, the motion is untimely. Under 28 U.S.C. § 1447(c), “[a] motion to remand the case
on the basis of any defect other than lack of subject matter jurisdiction must be made within 30
days after the filing of the notice of removal under section 1446(a).” This motion, filed more than
thirty days after the removed case was closed, is obviously past due.
Second, a case that is removed, decided, and closed in federal court does not revert to its
state origin at time of closing. See Phoenix Fuel Corp. v. Sunworld Int'l Airlines, No. C-06-
06104 RMW, 2007 U.S. Dist. LEXIS 111252, *4-5 (N.D. Cal. Feb. 7, 2007) (“Once a case is
removed from state court, all further state court actions are void. The state court may resume
jurisdiction only if and when the case is remanded by the federal court.”). There would be little
purpose in removing a case if, after it was litigated in federal court, the parties found themselves
back at the point of removal in state court. This does not necessarily mean that all claims at issue
are forever barred from being raised in state proceedings. But it does mean that the results of the
litigation in federal court after the removal cannot be ignored. Here, plaintiff’s claims were
dismissed without prejudice but without leave to amend. In other words, those claims were not
resolved on the merits but were dismissed in a manner that they cannot be revived in this
proceeding. It may be that some of his claims could be brought in a new state court proceeding.
However, that possibility is for plaintiff to explore and not for this court to opine on.
For the foregoing reasons, it is RECOMMENDED that plaintiff’s motion for remand
(ECF No. 20) be DENIED.
These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
after being served with these findings and recommendations, any party may file written
objections with the court and serve a copy on all parties. Such a document should be captioned
“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
within the specified time may waive the right to appeal the District Court’s order. Turner v.
Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
DATED: October 16, 2020.
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