Tuscany et al v. Villalobos et al

Filing 12

Order by Hon. James Donato Adopting 8 Report and Recommendation, Remanding Case and Imposing Pre-Filing Review. (jdlc2S, COURT STAFF) (Filed on 1/30/2017)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

RICHARD TUSCANY,
Plaintiff,

8
v.

9
10

ELENA VILLALOBOS, et al.,
Defendants.

11
United States District Court
Northern District of California

Case No. 16-cv-07373-JD
ORDER ADOPTING REPORT AND
RECOMMENDATION, REMANDING
CASE AND IMPOSING PRE-FILING
REVIEW
Re: Dkt. No. 8

12
The Court has reviewed Chief Magistrate Judge Joseph Spero’s report and

13
14

recommendations. Dkt. No. 8. No objections have been filed in response to the report, and by the

15

Court’s calculation, the time to file objections expired on January 20, 2017. See Fed. R. Civ. P.

16

72(b).

17

This is defendants’ second attempt to remove the very same case the Court previously

18

ordered remanded. See Case No. 16-cv-6252-JD, Dkt. No. 10 (order remanding case, dated

19

December 12, 2016). The Court agrees with Magistrate Judge Spero’s recommendation that the

20

case should be remanded again because the removal is jurisdictionally improper and untimely.

21

Dkt. No. 8.

22

The Court further agrees with Magistrate Judge Spero’s finding that defendants’ removals

23

are frivolous and his recommendation that a pre-filing review order should be imposed. The Court

24

consequently orders that before filing any further notices of removal of Monterey County Superior

25

Court case number 16CV001985, Elena Villalobos, Jonathan Villalobos, Raul Villalobos and/or

26

Ashley Villalobos must first file a motion with the Court seeking leave to file a notice of removal.

27

Any such motion must include: (1) a copy of Magistrate Judge Spero’s Report and

28

Recommendation issued in this case; (2) a copy of this Order; and (3) a copy of the proposed

1

filing. The Clerk of the Court shall not accept for filing any further notices of removal of

2

Monterey County Superior Court case number 16CV001985 unless accompanied by an order from

3

a judge of this district granting leave to file the removal papers.

4

The Court agrees with Magistrate Judge Spero’s finding that “[t]he record as a whole

5

indicates an intent to delay” on the part of defendants, “rather than a bona fide desire to litigate in

6

a federal forum.” Dkt. No. 8 at 4. Unfortunately, it does not appear to the Court that fees and

7

sanctions can properly be awarded at this time under Rule 11 of the Federal Rules of Civil

8

Procedure or 28 U.S.C. § 1447(c). Any further attempts to remove this case that are not in

9

compliance with this order, however, will result in monetary sanctions on defendants.

10

United States District Court
Northern District of California

11

IT IS SO ORDERED.
Dated: January 30, 2017

12
13
JAMES DONATO
United States District Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2