Doose v. Wal-Mart Stores Inc.

Filing 35

ORDER REMANDING CASE. Signed by Magistrate Judge Nandor J. Vadas on January 24, 2012. (njvlc2, COURT STAFF) (Filed on 1/24/2012)

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Not For Publication
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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EUREKA DIVISION
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GINN DOOSE,

No. 1:11-CV-01882 NJV

Plaintiff,
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For the Northern District of California

United States District Court

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ORDER REMANDING CASE TO LAKE
COUNTY SUPERIOR COURT

v.
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WAL-MART STORES, INC.,
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Defendant.
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___________________________________/
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Plaintiff Ginn Doose originally filed this action in Lake County Superior Court and

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subsequently improperly removed her own case to this Court pursuant to 28 U.S.C. § 1446.

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Defendant Wal-Mart Stores, Inc. did not move to remand the case on this or any other ground, but

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moved to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. No. 20. The

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Court ordered the parties to submit further briefing regarding the Court’s jurisdiction to decide this

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matter in light of the improper removal. Doc. No. 30. Defendant argues that it would have removed

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the case to this Court if Plaintiff had not done so, and that the Court has jurisdiction over the action

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because Plaintiff attempts to plead claims under federal law. See Doc. No. 31. Plaintiff similarly

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argues that this Court has subject matter jurisdiction over her federal claims. See Doc. No. 34. The

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Court held a hearing on January 24, 2012, and as stated during the hearing, remands this case to

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Superior Court.

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Regardless of the existence of subject matter and personal jurisdiction, a federal court lacks

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jurisdiction to hear a case that was improperly removed by a plaintiff. The general removal statutes

these statutes must be strictly construed (Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).

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See generally 16 James Wm. Moore et al., Moore’s Federal Practice - Civil § 107.11[2] (2011)

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(“The removal jurisdiction of federal courts is entirely a creature of statute and is strictly construed.

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The general removal statute does not permit plaintiffs to remove an action that they filed in state

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court. Thus, a plaintiff who elected state court jurisdiction when filing the complaint may not

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subsequently remove the action to federal court”) (internal citations and footnotes omitted). The

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removal by Plaintiff is not a procedural error that can be waived by the parties, but a substantive

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jurisdictional defect. See In re Walker, 375 F.2d 678 (9th Cir. 1967) (“[N]o right exists in favor of a

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person who, as plaintiff, has filed an action in the state court to cause the removal of such action to a

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For the Northern District of California

vest the right to remove a case exclusively in the defendant (28 U.S.C. §§ 1441(a), 1446(a)), and

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United States District Court

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federal court”); Okot v. Callahan, 788 F.2d 631, 633 (9th Cir. 1986) (“Removal is available only to

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defendants”); Desouza v. Albin, 1993 U.S. Dist. LEXIS 15267 (N.D. Cal. Oct. 12, 1993) (dismissing

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removal notice and remanding to state court because plaintiff failed to meet statutory requirements

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for removal as he was not a defendant in state action).

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Plaintiff may choose to re-file her case in federal court. If she chooses to pursue her case in

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state court, Defendant may remove the matter. The Clerk is directed to terminate Docket Nos. 3

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(IFP application) and 20 (motion to dismiss) as moot, to remand the case to the Lake County

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Superior Court, and to close the case.

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IT IS SO ORDERED.

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Dated: January 24, 2012
NANDOR J. VADAS
United States Magistrate Judge

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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EUREKA DIVISION

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Plaintiff,

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For the Northern District of California

United States District Court

No. 1:11-CV-1882 NJV

GINN DOOSE,

v.

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CERTIFICATE OF SERVICE

WAL-MART STORES, INC.,

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Defendant.

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I, the undersigned, hereby certify that I am an employee in the U.S. District Court, Northern
District of California. On the below date, I served a true and correct copy of the attached, by placing
said copy/copies in a postage-paid envelope addressed to the persons listed below, by depositing
said envelope in the U.S. Mail; or by placing said copy/copies into an inter-office delivery receptacle
located in the Office of the Clerk.

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Ginn Doose
P.O. Box 2310
Clearlake, CA 95422

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Dated: January 24, 2012
/s/ France Jaffe
France Jaffe
Law Clerk to the
Honorable Nandor J. Vadas

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