Ozim v. The California Endowment

Filing 19

ORDER RE REMAND. Signed by Judge James Donato on 10/16/2020. (jdlc4S, COURT STAFF) (Filed on 10/16/2020)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAISY OZIM,

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Plaintiff,

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ORDER RE REMAND

v.

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Re: Dkt. No. 6
THE CALIFORNIA ENDOWMENT,

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Defendant.

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United States District Court
Northern District of California

Case No. 20-cv-06517-JD

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Pro se plaintiff Daisy Ozim originally filed this case in the California Superior Court. Dkt.

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No. 1. Ozim removed her own complaint, ostensibly on federal question grounds. Id. The

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California Endowment (“TCE”) asks to remand the case back to the state court, and for costs and

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fees. Dkt. No. 6.
The Court finds the matter suitable for decision without oral argument. Civil L.R. 7-1(b).

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The case was removed improvidently and without jurisdiction, and is remanded to the Superior

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Court for the County of Alameda. 28 U.S.C. § 1447(c). The Court declines to award costs and

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fees.
BACKGROUND

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Ozim filed her original complaint in the California Superior Court on March 12, 2020, and

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served TCE with the summons and complaint on or about May 28, 2020. Dkt. No. 6-1 (Fenske

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Decl.) ¶ 2.1 The California state court sustained a demurrer to Ozim’s first amended complaint on

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August 31, 2020, granting her a final opportunity to amend by September 20, 2020. Id. ¶ 5 and

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Exh. 1. Ozim filed two motions to disqualify the presiding judge, which were denied on August

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According to the notice of removal, other defendants were named but unserved at the time of
removal. Dkt. No. 1-1 at 4.

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11 and September 14, 2020. Id. ¶ 7 and Exhs. 2-3.
On September 17, 2020, Ozim filed a notice of removal, Dkt. No. 1, as well as two

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proposed amended complaints alleging violations of 28 U.S.C. § 1983 and various other federal

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statutes, Dkt. Nos. 4, 5. Since TCE moved to remand, Ozim has filed another proposed amended

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complaint, Dkt. No. 14, a late opposition to remand, Dkt. No. 15, and a motion for summary

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judgment, Dkt. No. 16.
DISCUSSION

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I.

REMAND
The standards governing this remand motion are well-established. See Leventhal v.

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Jackson National Life Ins. Co., No. 19-cv-02123-JD, 2020 WL 1528447, at *2 (N.D. Cal. Mar. 31,

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United States District Court
Northern District of California

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2020). There is a strong presumption against removal, and the removal statute is strictly construed

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against finding federal jurisdiction. Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). Any doubts

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about the propriety of removal should be resolved in favor of a remand to state court. Matheson v.

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Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003). Principles of federalism,

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comity, and respect for the state courts also counsel strongly in favor of scrupulously confining

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removal jurisdiction to the precise limits that Congress has defined. Shamrock Oil & Gas Corp. v.

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Sheets, 313 U.S. 100, 108-09 (1941). The removing party always bears the burden of

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demonstrating that removal was proper. Gaus, 980 F.2d at 566.

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It is quite clear that only a defendant, and not a plaintiff, may remove a case. See 28

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U.S.C. § 1441(a) (authorizing removal of certain civil actions “by the defendant or the

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defendants”); see also Shamrock Oil & Gas Corp., 313 U.S. at 106-07; Progressive West Ins. Co.

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v. Preciado, 479 F.3d 1014, 1017 (9th Cir. 2007). The same goes for the other removal statutes

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referred to by Ozim. Dkt. No. 1 at 1; Dkt. No. 15 at 1; 28 U.S.C. §§ 1442, 1443. Section 1442

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permits certain federal defendants -- such as the United States, its agencies, and federal officers --

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to remove civil actions or criminal prosecutions brought “against or directed to” them in state

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court. 28 U.S.C. § 1442(a). Section 1443 authorizes removal “by the defendant” of state court

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actions implicating the denial of equal rights. Id. § 1443.

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Ozim’s mention of several other statutes does not change the remand conclusion. The

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federal question and supplemental jurisdiction statutes do not, in themselves, provide for removal.

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See 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 1367(a) (supplemental jurisdiction); see

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generally U.S. Fid. & Guar. Co. v. Lee Investments LLC, 641 F.3d 1126, 1132 (9th Cir. 2011).

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The judicial recusal statute, 28 U.S.C. § 455, is entirely irrelevant to removal jurisdiction. Ozim’s

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attack on the California state court’s ability to provide a just and unbiased resolution of her case,

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Dkt. No. 15 at 3, also has no bearing on removal jurisdiction, and is utterly bereft of any

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supporting evidence.
Consequently, Ozim had no right to remove her case to this Court. It must be remanded.

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United States District Court
Northern District of California

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II.

COSTS AND FEES
TCE asks for an award of costs and attorney’s fees for the remand motion. Dkt. No. 6 at 4;

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Dkt. No. 6-1 ¶ 11; Dkt. No. 17 at 3; Dkt. No. 17-1 ¶ 6. The Court may in its sound discretion

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order payment of “just costs and any actual expenses, including attorney fees, incurred as a result

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of the removal.” 28 U.S.C. § 1447(c). “Absent unusual circumstances, courts may award

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attorney’s fees under § 1447(c) only where the removing party lacked an objectively reasonable

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basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). “But

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removal is not objectively unreasonable solely because the removing party’s arguments lack merit,

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or else attorney’s fees would always be awarded whenever remand is granted.” Lussier v. Dollar

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Tree Stores, Inc., 518 F.3d 1062, 1065 (9th Cir. 2008). Instead, the objective reasonableness of a

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removal depends on the clarity of the applicable law and whether such law “clearly foreclosed”

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the arguments in support of removal. Id. at 1066-67.

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There is no doubt that removal was not well taken here. But Ozim is a pro se litigant, and

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removal and federal jurisdiction can be a challenge even for experienced attorneys. The Court

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declines to award fees or costs.

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CONCLUSION

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This action was removed improvidently and without jurisdiction, and is remanded to the
Superior Court of California for the County of Alameda. 28 U.S.C. § 1447(c).
IT IS SO ORDERED.
Dated: October 16, 2020

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JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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