Miles v. Makishima et al

Filing 54

ORDER RE: NOTICE OF REMOVAL. The Notice of Removal is stricken, and the action is remanded to the Superior Court of the State of California, County of San Mateo. No further filings shall be accepted in this closed case. Signed by Judge Maxine M. Chesney on September 29, 2008. (mmclc2, COURT STAFF) (Filed on 9/29/2008)

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

GRACE MILES, Plaintiff, v. ROYCE MAKISHIMA, et al., Defendants. /

No. C-06-1295 MMC ORDER RE: NOTICE OF REMOVAL

United States District Court

The Court is in receipt of plaintiff's "Notice of Removal of Action," filed September 24, 2008. As set forth below, the Court will strike the Notice of Removal and remand the action to the Superior Court of the State of California, County of San Mateo. The following events have occurred in the instant action:1 1. On November 17, 2004, plaintiff filed a complaint in the Superior Court of the State of California, County of San Mateo ("state court"). 2. On February 22, 2006, the action was removed to the United States District Court for the Northern District of California ("District Court"). 3. On September 25, 2006, the action was remanded to the state court; a threeweek jury trial thereafter was conducted by the state court, beginning June 12, 2007 and

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continuing through July 5, 2007. 4. On September 28, 2007, defendant Royce Makishima filed for bankruptcy in the United States Bankruptcy Court for the Eastern District of California ("Eastern District Bankruptcy Court"). 5. On October 12, 2007, the state court issued a tentative decision in the action, resolving all claims in favor of defendants. 6. On April 28, 2008, plaintiff removed the action to the United States Bankruptcy Court for the Northern District of California ("Northern District Bankruptcy Court"). 7. On April 29, 2008, the Eastern District Bankruptcy Court modified the automatic stay to permit the state court to enter final judgment in the action. 8. On July 16, 2008, the Northern District Bankruptcy Court remanded the action to the state court. 9. On July 29, 2008, plaintiff filed both an appeal of the Northern District Bankruptcy Court's order remanding the action ("First Appeal") and a motion for leave to file a motion for reconsideration. 10. On August 4, 2008, the Northern District Bankruptcy Court denied plaintiff's motion for leave. 11. On August 15, 2008, plaintiff appealed the denial of her motion for leave ("Second Appeal"). 12. Both the First Appeal and the Second Appeal are currently pending in the District Court. Because the Northern District Bankruptcy Court, a division of the District Court, has ruled on the removal of the instant action, and further, because plaintiff has appealed that ruling and her appeal is currently pending, plaintiff may not collaterally attack the Northern District Bankruptcy Court's ruling by attempting to again remove the instant action to the District Court. Accordingly, the Notice of Removal is hereby STRICKEN and the action is hereby REMANDED to the Superior Court of the State of California, County of San Mateo. 2

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No further filings shall be accepted in this closed case. IT IS SO ORDERED. Dated: September 29, 2008 MAXINE M. CHESNEY United States District Judge

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