Abitsch & Abitsch, LLC v. Wanigatunga et al

Filing 18

ORDER DENYING PLAINTIFF'S MOTION FOR AMENDED ORDER OF REMAND by Hon. William Alsup denying 9 Motion to Remand.(whalc2, COURT STAFF) (Filed on 9/4/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ABITSCH AND ABITSCH, LLC

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For the Northern District of California

United States District Court

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No. C 12-03684 WHA

Plaintiff,
v.

ORDER DENYING PLAINTIFF’S
MOTION FOR AMENDED
ORDER OF REMAND

DARUKA WANIGATUNGA,
Defendant.
/

Before the Court is plaintiff’s motion for an amended order of remand. On July 31, 2012,

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the Court issued an order denying defendant’s application for a TRO and remanding the matter

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to state court due to lack of federal jurisdiction (Dkt. No. 7). Plaintiff now moves the Court to

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amend its order to backdate it to “be effective nunc pro tunc as of July 13, 2012.” For the

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reasons stated below, the motion is hereby DENIED.

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Plaintiff filed an unlawful detainer action against defendant in state court. Defendant

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removed the action to federal court five times in an apparent attempt to stall the state court

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proceedings. Each time, this Court has remanded the case in no uncertain terms due to lack of

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jurisdiction. Plaintiff states that the case was set for trial in state court on Monday July 16. On

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the Friday before trial, defendant removed the case to federal court for the fifth time. Defendant

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did not file a notice of removal with the state court until July 17. On July 16, the state court sent

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the case to trial, noting that the notice of removal had been presented to the court but had not

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actually been filed. That same day, the court granted judgment in favor of plaintiff. The
judgment was signed and entered on July 17, and a writ of execution was issued the following

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day. Defendant was evicted on August 1. On August 13, defendant filed a motion to vacate and

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set aside the judgment, in part on the ground that the state court lacked jurisdiction to enter

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judgment after the case had been removed to federal court. Plaintiff’s motion requests that this

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Court backdate its order on remand to be effective nunc pro tunc as of July 13, 2012, the same

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day that defendant removed the case to federal court.

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“Nunc pro tunc amendments are permitted primarily so that errors in the record may be

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corrected. The power to amend nunc pro tunc is a limited one, and may be used only where

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necessary to correct a clear mistake and prevent injustice. It does not imply the ability to alter

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the substance of that which actually transpired or to backdate events to serve some other
purpose.” United States v. Sumner, 226 F.3d 1005, 1009–10 (9th Cir. 2000) (citations omitted).

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For the Northern District of California

United States District Court

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Here, defendant removed the action to federal court on July 13. Pursuant to the federal and local

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rules, the Court issued an order to remand the case upon review of the first motion filed after

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defendant’s notice of removal. There is no error to correct. While the Court is sympathetic to

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plaintiff’s position in light of defendant’s repeated abuses, plaintiff may seek relief through other

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more appropriate avenues, including before the state court in which the judgment was entered.

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Defendant and his counsel are warned to please NOT remove this action yet again.

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IT IS SO ORDERED.

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Dated: September 4, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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