(PC) Mitchell v. Piffer et al

Filing 22

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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL MITCHELL,

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No. 2:18-cv-2949-WBS-EFB P

Plaintiff,

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v.

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PIFFER,

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FINDINGS AND RECOMMENDATIONS

Defendant.

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Plaintiff, a state prisoner proceeding without counsel, brought this action in the Amador

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County Superior Court. ECF No. 1. Defendant removed the case to this court on November 9,

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2018 (id.) and, on January 16, 2020, it was dismissed without leave to amend for failure to state a

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cognizable claim. ECF No. 18. No appeal was taken.

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Now, plaintiff has filed a motion to remand this closed case to the superior court. ECF

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No. 20. Therein, he argues that, since the dismissal in this court, he has unsuccessfully attempted

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to reopen the state court case that was removed. Id. at 2-4. This motion must be denied for two

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reasons.

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First, the motion is untimely. Under 28 U.S.C. § 1447(c), “[a] motion to remand the case

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on the basis of any defect other than lack of subject matter jurisdiction must be made within 30

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days after the filing of the notice of removal under section 1446(a).” This motion, filed more than

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thirty days after the removed case was closed, is obviously past due.
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Second, a case that is removed, decided, and closed in federal court does not revert to its

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state origin at time of closing. See Phoenix Fuel Corp. v. Sunworld Int'l Airlines, No. C-06-

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06104 RMW, 2007 U.S. Dist. LEXIS 111252, *4-5 (N.D. Cal. Feb. 7, 2007) (“Once a case is

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removed from state court, all further state court actions are void. The state court may resume

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jurisdiction only if and when the case is remanded by the federal court.”). There would be little

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purpose in removing a case if, after it was litigated in federal court, the parties found themselves

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back at the point of removal in state court. This does not necessarily mean that all claims at issue

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are forever barred from being raised in state proceedings. But it does mean that the results of the

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litigation in federal court after the removal cannot be ignored. Here, plaintiff’s claims were

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dismissed without prejudice but without leave to amend. In other words, those claims were not

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resolved on the merits but were dismissed in a manner that they cannot be revived in this

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proceeding. It may be that some of his claims could be brought in a new state court proceeding.

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However, that possibility is for plaintiff to explore and not for this court to opine on.

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For the foregoing reasons, it is RECOMMENDED that plaintiff’s motion for remand
(ECF No. 20) be DENIED.

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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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: October 16, 2020.

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