McBrien v. City and County of San Mateo et al

Filing 9

ORDER REMANDING CASE TO STATE COURT AND DENYING AS MOOT 3 APPLICATION TO PROCEED IN FORMA PAUPERIS. Signed by Judge Claudia Wilken on 1/6/2012. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 1/6/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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KAREN MCBRIEN,
Plaintiff,

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United States District Court
For the Northern District of California

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ORDER REMANDING
CASE TO STATE
COURT AND DENYING
AS MOOT
APPLICATION TO
PROCEED IN FORMA
PAUPERIS

v.
CITY OF SAN MATEO, et al.,

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No. C 11-5612 CW

Defendants.
________________________________/

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Plaintiff Karen McBrien originally filed this case in state

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court, removed it to federal court and applies to proceed in forma

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pauperis.

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Plaintiff has improperly removed this case.

The statutes

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governing removal, 28 U.S.C. § 1441 and 1446, indicate that a case

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is removable from state to federal court by the defendant or

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defendants in the action.

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case by a plaintiff because the plaintiff is the party who has

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decided to file the case in state court.

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Centry Mortg. Corp., 2011 WL 4499117, *1 (S.D. Cal.) (the removal

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statute does not permit a plaintiff to remove an action he chose

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to file in state court); In re Walker, 375 F.2d 678, 678 (9th Cir.

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1967) (no right in favor of plaintiff, who has filed action in

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state court, to cause the removal of such action).

There is no provision for removal of a

See Esparza v. New

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Because removal is improper, this case is remanded to state

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court.

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denied as moot.

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Plaintiff's application to proceed in forma pauperis is

IT IS SO ORDERED.

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Dated: 1/6/2012

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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