Gross Mortgage v. Sabir Al-Mansur

Filing 14

ORDER by Judge Yvonne Gonzalez Rogers denying 2 Motion for Leave to Proceed in forma pauperis ; granting 12 Motion to Remand Action to the Superior Court of California, County of Alameda. The Case Management Conference scheduled for 12/9/2013 is VACATED. (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 11/22/2013)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 GROSS MORTGAGE, 7 Plaintiff, 8 9 10 Northern District of California United States District Court 11 vs. Case No.: 13-cv-02944-YGR ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS AND REMANDING ACTION TO THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA SABIR AL-MANSUR, Defendant. 12 13 14 15 Defendant Sabir Al-Mansur removed this action to federal court on June 26, 2013. (See Dkt. No. 1.) Concurrently, he filed an Application to Proceed in Forma Pauperis. (Dkt. No. 2.) Pursuant to 28 U.S.C. section 1915, a district court may authorize the commencement of a 16 civil action in forma pauperis if the court is satisfied that the would-be plaintiff cannot pay the 17 filing fees necessary to pursue the action. 28 U.S.C. § 1915(a)(1). The court may deny in forma 18 pauperis status, however, if it appears from the face of the proposed complaint that the action is 19 frivolous or without merit. O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990); Tripati v. First 20 National Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987). In addition, federal courts are under a 21 duty to raise and decide issues of subject matter jurisdiction sua sponte at any time it appears 22 subject matter jurisdiction may be lacking. Fed. R. Civ. P. 12(h)(3); Augustine v. United States, 23 704 F.2d 1074, 1077 (9th Cir. 1983). If the Court determines that subject matter jurisdiction is 24 lacking, the Court must dismiss the case. Id. 25 Having reviewed the “Notice of Civil Rights Removal to Unlawful Detainer Action Under 26 28 U.S.C. § 1443(1) and Other Sections as Cited” (“Notice of Removal”), the Court finds that it 27 lacks subject matter jurisdiction over this unlawful detainer action and that Defendant’s removal of 28 this action was frivolous. Defendant removed this unlawful detainer action bearing state court case no. RG12654035 1 2 from the Superior Court of California, County of Alameda. As a preliminary matter, the Court 3 notes that Defendant previously removed this same state court action to federal court, which was 4 assigned Case No. 13-cv-00398-EMC in this district (“Prior Removed Action”). In that case, the 5 Honorable Edward M. Chen remanded the action to Alameda County Superior Court because the 6 court lacked diversity jurisdiction and federal question jurisdiction. (See Dkt. Nos. 11 & 21 in Prior 7 Removed Action.) In addition, Judge Chen explained that Defendant had failed to make a requisite 8 showing for removal under 28 U.S.C. section 1443 (“Section 1443”), and that removal under 9 Section 1443 was thus improper. (Id.) Northern District of California In the present action, Defendant has filed a Notice of Removal that repeats the same 11 United States District Court 10 arguments raised in the notice of removal in the Prior Removed Action, with the addition of certain 12 federal statutes as a further reason that removal under Section 1443 is proper. The Court finds that 13 Defendant’s additional arguments in his Notice of Removal do not provide the Court with subject 14 matter jurisdiction, nor do these statutes—combined with Defendant’s conclusory arguments— 15 make his removal under Section 1443 proper. The Court finds that Defendant has now improperly 16 removed state court case no. RG12654035 twice. Defendant is hereby advised that he may not 17 “remove the same action [multiple times] where each removal is based on the same grounds.” St. 18 Paul & C. Ry. Co. v. McLean, 108 U.S. 212, 217 (1883); Midlock v. Apple Vacations West, Inc., 19 406 F.3d 453, 457 (7th Cir. 2005); S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492–93 (5th 20 Cir. 1996)). The Court also notes that Defendant has, this year alone, removed state court unlawful 21 22 detainer actions four times—two relating to state court case no. RG12654035 (including the instant 23 action) and two relating to state court case no. RG12654029.1 In each of these other three cases, 24 the matter was remanded based on a lack of subject matter jurisdiction and/or improper removal 25 under Section 1443. Further, the undersigned has been assigned to three other matters involving 26 removals of unlawful detainer actions by Defendant based on the same grounds of removal asserted 27 herein, and in each instance, the action was remanded. Defendant’s history of removing actions 28 1 See Case Nos. 13-cv-00399-PJH and 13-cv-02945-WHA. 2 1 without proper basis is further support for this Court’s finding that Defendant’s removal in this 2 action was both without merit and frivolous. 3 For the foregoing reasons, the Court DENIES Defendant’s Application to Proceed in Forma 4 Pauperis and REMANDS this action to the Superior Court of California, County of Alameda. The 5 Clerk of this Court is further ordered to forward certified copies of this Order and all docket entries 6 to the Clerk of the Alameda County Superior Court. 7 The Case Management Conference scheduled for December 9, 2013 is hereby VACATED. 8 This Order terminates Dkt. No. 2. 9 IT IS SO ORDERED. 10 Northern District of California United States District Court 11 12 Dated: November 22, 2013 _______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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