The Eidex Family Partnership, L.P. v. Justice

Filing 24

ORDER denying motion to repeal EMC (crblc2, COURT STAFF) (Filed on 4/21/2009)

1 2 3 4 5 6 7 8 9 10 v. CARLVIN JUSTICE, Defendant. ___________________________________/ EIDEX FAMILY PARTNERSHIP, L.P., Plaintiff, ORDER DENYING DEFENDANT'S MOTION TO REPEAL JUDGE CHEN'S ORDERS (Docket No. 23) No. C-08-1173 EMC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

United States District Court

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For the Northern District of California

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Defendant Carlvin Justice removed this case to federal court on February 27, 2008. See Docket No. 1 (notice of removal and complaint). Accompanying his notice of removal was an application to proceed in forma pauperis. See Docket No. 2 (in forma pauperis application). The case was assigned to a magistrate judge, Edward M. Chen. See Civ. L.R. 3-3 (providing that, upon the filing of a civil action, "the Clerk shall assign it to a Judge pursuant to the Assignment Plan of the Court"); Gen. Order 44 (randomly assigning newly filed cases to magistrate judges as well as district judges; providing that "[t]he purpose of the [Assignment Plan] is to provide an equitable system for a proportionate division of the caseload among the Judges and Magistrate Judges of the Court, for random assignment of cases, [etc.]"). Subsequently, Mr. Justice filed a consent to proceeding before a magistrate judge for all proceedings, including trial, with an appeal from the judgment to be taken directly to the Ninth Circuit. See Docket No. 4(consent). On April 2, 2008, Judge Chen issued an order granting the application to proceed in forma pauperis but remanding the case to state court for lack of subject matter jurisdiction. See Docket No. 4 (order). Thereafter, Mr. Justice made repeated attempts to withdraw his consent and/or have his

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case reassigned so that Judge Chen would no longer be the presiding judge. See, e.g., Docket Nos. 8, 13, 15, 17, 19, 21 (motions). Some of these requests were ruled upon by District Court Judge White (i.e., an Article III judge) as the general duty judge. See Docket Nos. 14, 16 (orders). Currently pending is, in effect, another request by Mr. Justice to withdraw his consent and/or to have the case reassigned. Having considered Mr. Justice's motion, as well as all other evidence of record, the Court hereby DENIES the request for relief. I. DISCUSSION

Title 28 U.S.C. § 636(c) allows for a magistrate judge to conduct all proceedings in a civil case upon the consent of the parties.1 See 28 U.S.C. § 636(c)(1). However, "[a] court may, for good cause shown on its own motion, or under extraordinary circumstances shown by any party, vacate a reference of a civil matter to a magistrate judge under . . . subsection [(c)(4)]." Id. § 636(c)(4). The Ninth Circuit has explained that this provision is essentially a part of the checks and balances among the three branches of the federal government. Through this provision, "Article III courts control the magistrate system as a whole" and therefore ensure control "over the interpretation, declaration, and application of federal law." Pacemaker Diagnostic Clinic, Inc. v. Instromedix, Inc., 725 F.2d 537, 544 (9th Cir. 1984) (en banc). In the instant case, Mr. Justice has moved to vacate reference of the matter to Judge Chen pursuant to § 636(c)(4). As indicated above, because such a motion may properly be heard by an Article III judge, Mr. Justice's motion was referred to the undersigned, as the general duty judge, for resolution.

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As indicated above, in the instant case, Mr. Justice consented to the jurisdiction of Judge Chen. Although a magistrate judge does not have jurisdiction over an action unless all parties have consented, Plaintiff Eidex Family Partnership, L.P.'s consent was not required in order for Judge Chen to remand because there is no indication that Eidex was ever served with the notice of removal and, as a result, it was not a party to the federal (as opposed to state) action. Cf. Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (holding that magistrate judge had jurisdiction to dismiss prison inmate's action under 42 U.S.C. § 1983 as frivolous without consent of defendants because defendants had not been served yet and therefore were not parties); see also United States v. Real Property, 135 F.3d 1312, 1317 (9th Cir. 1998) (holding that magistrate judge had jurisdiction to enter default judgment in in rem forfeiture action even though property owner had not consented because 28 U.S.C. § 636(c)(1) only requires the consent of the parties and the property owner, having failed to comply with applicable filing requirements, was not a party).

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As a preliminary matter, the Court notes that, less than half an hour before filing the pending motion, Mr. Justice submitted a document to the Ninth Circuit titled "Petition for Writ of Mandamus Compelling Remedial Behaviour Within the Jurisdiction." This petition was accepted for filing by the Ninth Circuit several days later, i.e., on April 16, 2009. While a district court is divested of jurisdiction upon a notice of appeal of a final judgment, see Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 755 (9th Cir. 2002), a petition for a writ of mandamus does not destroy the district court's jurisdiction in the underlying case. See Nascimento v. Dummer, 508 F.3d 905, 910 (9th Cir. 2007). The Court therefore does have jurisdiction to entertain Mr. Justice's motion to vacate the reference to Judge Chen. In resolving the motion, the Court begins by noting that Mr. Justice has previously moved for vacatur and that his motion was denied by Judge White of this District, acting as the general duty judge. Although this Court would be justified in refusing to entertain Mr. Justice's current motion because the issue has already been adjudicated by Judge White, out of an abundance of caution, it shall conduct its own review. As indicated above, Mr. Justice must demonstrate "extraordinary circumstances" to justify a vacatur of the reference. See 28 U.S.C. § 636(c)(4). Mr. Justice seems to argue that there are extraordinary circumstances because (1) Judge Chen has effectively been acting as a lawyer in the proceeding (i.e., as an advocate against Mr. Justice), see Mot. at 1 (citing 28 U.S.C. § 455(b)(5)(ii), which provides that a judge shall disqualify himself where "[h]e or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person . . . [i]s acting as a lawyer in the proceeding"), and/or because (2) Judge Chen is biased. See Mot. at 1 (citing Civil Local Rule 11-4(b), which provides that an attorney practicing before the court must practice "free from prejudice and bias"). Neither argument is availing. First, Judge Chen was not acting as an advocate for the opposing party by remanding the case to state court on his own initiative. It is the duty of a trial court to raise the issue of subject matter jurisdiction sua sponte if it appears lacking. See Khan v. Bhutto, C-93- 4165 MHP, 1993 U.S. Dist. LEXIS 17678, at *1 (N.D. Cal. Dec. 6, 1993) (stating that "[a] court may deny in forma pauperis status under 28 U.S.C. 1915(d) and dismiss sua sponte a claim . . . over which the court

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lacks subject matter jurisdiction"); see also Scholastic Entm't, Inc. v. Fox Entm't Group, Inc., 336 F.3d 982, 985 (9th Cir. 2003) (noting that "`[i]t has long been held that a judge can dismiss sua sponte for lack of jurisdiction'"); Csibi v. Fustos, 670 F.2d 134, 136 n.3 (9th Cir.1982) (noting that lack of subject matter jurisdiction can be raised sua sponte by a court at any time as it is "the duty of the federal courts to assure themselves that their jurisdiction is not being exceeded"). Second, although Mr. Justice claims that Judge Chen is biased, Mr. Justice has not pointed to any evidence suggesting bias on the part of Judge Chen other than his substantive ruling against Mr. Justice that there is no subject matter jurisdiction in the instant case. This is insufficient to establish bias. Cf. United States v. Grinnell Corp., 384 U.S. 563, 583 (1966) (explaining that "[t]he alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case."). Finally, Mr. Justice has not demonstrated that there are any extraordinary circumstances justifying vacatur. Indeed, based on the Court's independent review, it concludes that subject matter jurisdiction is lacking over the instant case and thus Judge Chen's ruling was correct on the merits. "In civil cases, subject matter jurisdiction is generally conferred upon federal district courts either through diversity jurisdiction, 28 U.S.C. § 1332, or federal question jurisdiction, 28 U.S.C. § 1331." Peralta v. Hispanic Bus., Inc., 419 F.3d 1064, 1068 (9th Cir. 2005). Federal question jurisdiction is clearly lacking since the complaint asserts only a claim for unlawful detainer, a state law claim. See, e.g., Aurora Loan Servs. LLC v. Metcalf, No. 08cv872-WQH-RBB, 2008 U.S. Dist. LEXIS 86220, at *3 (S.D. Cal. Oct. 24, 2008) (noting that, "[u]pon removal, the [d]efendant bears the burden of proving the existence of federal subject matter jurisdiction" and that the defendant failed to meet this burden because "the unlawful detainer action filed by [p]laintiff in state court relies exclusively on state law"); First Fed. Bank of Cal. v. Natividad, 2008 U.S. Dist. LEXIS 83101, at *5-6 (E.D. Cal. Sept. 5, 2008) (stating that "[t]his court has no jurisdiction over unlawful detainer actions which are strictly within the province of state court" and that "[d]efendants' apparent attempt at creating federal subject matter jurisdiction by simply adding claims and defenses to a petition for removal will not succeed").

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1 2 3 4 5 6 7 8 9 10 denied.

As for diversity jurisdiction, "[i]n any case where subject matter jurisdiction is premised on diversity, there must be complete diversity, i.e, all plaintiffs must have citizenship different than all defendants." Deutsche Bank Nat'l Trust Co. v. Anguiano, No. CV 09-01614 MMM (MANx), 2009 U.S. Dist. LEXIS 24978, at *9 (C.D. Cal. Mar. 17, 2009). There is no indication in the record that the parties are citizens of different states. Therefore, "the [C]ourt cannot determine whether this element of diversity jurisdiction is satisfied." Id. . II. CONCLUSION

For the foregoing reasons, Mr. Justice's motion to vacate the reference to Judge Chen is

This order disposes of Docket No. 23.

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IT IS SO ORDERED.

Dated: April 21, 2009 _______________________ CHARLES R. BREYER United States District Judge

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