Conway v. Conway

Filing 8

ORDER REMANDING CASE to the Superior Court of California, County of Alameda. Signed by Judge Saundra Brown Armstrong, on 04/08/13 ***Civil Case Terminated. (lrc, COURT STAFF) (Filed on 4/9/2013) Modified on 4/9/2013 (jlm, COURT STAFF).

1
2

UNITED STATES DISTRICT COURT

3

FOR THE NORTHERN DISTRICT OF CALIFORNIA

4

OAKLAND DIVISION
Case No: C 13-1388 SBA

5

FRANCES E. CONWAY,
ORDER REMANDING ACTION

6

Plaintiff,
7

vs.
8

LEE CONWAY,
9

Defendant.
10
11
12

On January 12, 2013, Plaintiff Frances Conway filed a Petition for Dissolution of

13

Marriage against her husband, Defendant Lee Conway, in the Alameda County Superior

14

Court. See Conway v. Conway, Alam. Cnty. Super. Ct. No. AF13663117. In the course of

15

the divorce proceedings, Plaintiff sought to freeze their joint Vanguard account, given her

16

belief that Defendant had defrauded her. See F. Conway Decl. at 1, Dkt. 1-2. By all

17

accounts, the divorce proceedings appear to be ongoing.

18

On March 28, 2013, Defendant, acting pro se, removed the dissolution action under

19

28 U.S.C. § 1441(a) on the grounds that this Court has original jurisdiction over the

20

petition. In particular, Defendant alleges that Plaintiff’s divorce petition accuses him of

21

violating a federal statute; to wit, the Racketeer Influenced and Corrupt Organizations Act

22

(RICO). See Statement of Grounds for Removal at 2, Dkt. 1.

23

Under 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the

24

district courts of the United States have original jurisdiction, may be removed by the

25

defendant or the defendants, to the district court of the United States ....” 28 U.S.C.

26

§ 1441(a). Under 28 U.S.C. § 1331, district courts “have original jurisdiction of all civil

27

actions arising under the Constitution, laws, or treaties of the United States.” Federal

28

question jurisdiction is presumed to be absent unless the removing party which seeks to

1

invoke the Court’s jurisdiction shows that plaintiff has alleged: (1) a federal cause of

2

action, Am. Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916) (“a suit

3

arises under the law that creates the action”); (2) a state cause of action that turns on a

4

substantial dispositive issue of federal law, Franchise Tax Bd. v. Construction Laborers

5

Vacation Trust, 463 U.S. 1, 9 (1983); Smith v. Kansas City Title & Trust Co., 255 U.S.

6

180, 199 (1921); or (3) a state cause of action that Congress has transformed into an

7

inherently federal cause of action by completely preempting the field of its subject matter,

8

Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 560 (1968).

9

In the case of a removed action, a district court must remand the case to state court

10

“if at any time before the final judgment it appears that the district court lacks subject

11

matter jurisdiction.” 28 U.S.C. § 1447(c); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.

12

1992). “The presumption against removal means that the defendant always has the burden

13

of establishing that removal is proper.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d

14

1241, 1244 (9th Cir. 2009). “[R]emoval statutes are strictly construed against removal.”

15

Luther v. Countrywide Home Loans Servicing, LP, 533 F.3d 1031, 1034 (9th Cir. 2008).

16

As such, any doubts regarding the propriety of the removal favor remanding the case. See

17

Gaus, 980 F.2d at 566.

18

Here, Defendant’s Notice of Removal avers that Plaintiff is alleging a RICO claim

19

against him. This contention lacks merit. The Court has reviewed the copy of the petition

20

for dissolution attached to the Notice of Removal and finds no mention of RICO or any

21

other federal law. As such, there is no federal cause of action stated against Defendant.

22

There also is no basis for finding that Plaintiff’s petition turns on a substantial dispositive

23

issue of federal law or states a cause of action preempted by a federal statute. Thus, the

24

Court concludes that removal jurisdiction is lacking and that remand under 28 U.S.C.

25

§ 1447(c) is warranted. Accordingly,

26

IT IS HEREBY ORDERED THAT the instant action is REMANDED to the

27

Superior Court of California, County of Alameda. The Clerk shall close this file and

28

terminate all pending matters.
-2-

1
2

IT IS SO ORDERED.
Dated: April 8, 2013

________________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-

1
2
3

UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

4
5

FRANCES E. CONWAY,

6
7
8
9

Plaintiff,
v.
LEE CONWAY et al,
Defendant.
/

10
11

Case Number: CV13-01388 SBA

12

CERTIFICATE OF SERVICE

13
14
15
16
17
18

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on April 9, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

19
20
21
22
23
24
25

Frances E. Conway
P.O. Box 13154
Station E
Oakland, CA 94661
Dated: April 9, 2013
Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk

26
N:\K…\Civil\13-1388 - Conway - Order Remanding Action.docx

27
28
-4-