Modacure v. B& B Vehicle Processing, Inc. et al

Filing 19

ORDER GRANTING IN FORMA PAUPERIS APPLICATION AND REMANDING CASE: Plaintiff's In Forma Pauperis application is granted and this action is remanded to Alameda County Superior Court. Defendants' motion to remand is denied as moot. Signed by Judge Magistrate Judge Donna M. Ryu on 12/5/16. (ig, COURT STAFF) (Filed on 12/5/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOANNA MODACURE,

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Case No. 16-cv-06022-DMR

Plaintiff,
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v.
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B& B VEHICLE PROCESSING, INC., et
al.,

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United States District Court
Northern District of California

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Defendants.

ORDER GRANTING IFP
APPLICATION AND REMANDING TO
ALAMEDA COUNTY SUPERIOR
COURT
Re: Dkt. Nos. 1, 2

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Plaintiff Joanna Modacure filed a notice of removal and an application to proceed in forma

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pauperis (“IFP”). [Docket Nos. 1, 2.] Having considered Plaintiff’s papers, the court grants the

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application to proceed IFP and remands this action to Alameda County Superior Court.1

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I. DISCUSSION
A. IFP Application

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A court may allow a plaintiff to prosecute an action in federal court without prepayment of

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fees or security if the plaintiff submits an affidavit showing that he or she is unable to pay such

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fees or provide such security. See 28 U.S.C. § 1915(a). Having evaluated Plaintiff’s financial

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affidavit, the court finds that she has satisfied the economic eligibility requirement of 28 U.S.C. §
1915(a) and grants the application to proceed IFP.
B. Removal Jurisdiction

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The court’s grant of Plaintiff’s application to proceed IFP, however, does not mean that

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she may continue to prosecute her complaint. A court is under a continuing duty to dismiss a case

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All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. §
636(c)(1). On November 17, 2016, Defendants filed a joint motion to remand this case to state
court. [Docket No. 15.]

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filed without the payment of the filing fee whenever it determines that the action “(i) is frivolous

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or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief

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against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

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Plaintiff removed this action pursuant to 28 U.S.C. §§ 1441 and 1446. Notice of Removal
¶ 10. Attached to the notice of removal is a complaint filed by Plaintiff in Alameda County

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Superior Court against Defendants B & B Vehicle Processing Inc., City of Oakland Police

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Department, Oakland Parking Citation Assistance Center, and Paylock. Notice of Removal at 13-

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19. It appears that Plaintiff complains that Defendants wrongfully towed her car and that Plaintiff

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seeks to prevent Defendants from selling her car. Plaintiff asserts that Defendants’ actions violate

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various California Vehicle and Civil Code provisions as well as her federal and state constitutional

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United States District Court
Northern District of California

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rights. See id.

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

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

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other defendants, to the district court of the United States for the district and division embracing

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the place where such action is pending.” 28 U.S.C. § 1441(a). “If the district court at any time

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determines that it lacks jurisdiction over the removed action, it must remedy the improvident grant

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of removal by remanding the action to state court.” Cal. ex rel. Lockyer v. Dynegy, Inc., 375 F.3d

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831, 838 (9th Cir.), opinion amended on denial of reh’g, 387 F.3d 966 (9th Cir. 2004) (citing 28

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U.S.C. § 1447). “The removal statute is strictly construed against removal jurisdiction, and the

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burden of establishing federal jurisdiction falls to the party invoking the statute.” Id. Under 28

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U.S.C. § 1441, the right to remove a case to federal court is vested exclusively in the defendant or

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defendants, not in the plaintiff. See 28 U.S.C. § 1441(a). A plaintiff is precluded from removing

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actions to federal court, even to defend against a counterclaim or cross-claim. See Progressive

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West Ins. Co. v. Preciado, 479 F.3d 1014, 1017-18 (9th Cir. 2007) (discussing “longstanding rule”

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from Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941)), that “a plaintiff/cross-defendant

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cannot remove an action to federal court”). Therefore, Plaintiff has no right to remove this action

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from state court.

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II. CONCLUSION
For the foregoing reasons, Plaintiff’s IFP application is granted and this action is remanded
to Alameda County Superior Court. Defendants’ motion to remand is denied as moot.

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IT IS SO ORDERED.
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Dated: December 5, 2016
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______________________________________
DONNA M. RYU
United States Magistrate Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOANNA MODACURE,

Case No.4:16-cv-06022-DMR

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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B& B VEHICLE PROCESSING, INC., et
al.,

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Defendants.

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United States District Court
Northern District of California

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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 12/5/2016, 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.

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Joanna Modacure
1501 37th Ave., B1
Oakland, CA 94601

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Dated: 12/5/2016

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Ivy Lerma Garcia, Deputy Clerk to the
Honorable DONNA M. RYU