Mosser Companies, Inc. v. Eberwein

Filing 5

ORDER DISMISSING ACTION WITHOUT PREJUDICE. If plaintiff fails to respond within 28 days of this Order, the Clerk of the Court shall terminate the docket and close the file. Signed by Judge Yvonne Gonzalez Rogers on 10/13/17. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 10/13/2017)

1
2
3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5
6

MOSSER COMPANIES, INC.,
Plaintiff,

7
8
9

United States District Court
Northern District of California

ORDER DISMISSING ACTION WITHOUT
PREJUDICE

vs.
ROBERT D EBERWEIN,

Re: Dkt. Nos. 1, 3

Defendant.

10
11

CASE NO. 17-cv-05707-YGR

On October 3, 2017, defendant Robert D. Eberwein, representing himself pro se, filed this

12

action styled as a removal. (Dkt. No. 1.) Defendant’s filing does not sufficiently identify in his

13

removal papers from which proceeding below he is seeking removal, or the basis for this Court’s

14

jurisdiction. At page 1 of Docket Number 1, he indicates that he is removing the action from

15

Mosser v. Eberwein, No. 17-CV-659496 (S.F. Sup. Ct.). Attached to this document, however, are

16

several documents that do not appear to pertain to the proceeding from which he is seeking

17

removal, including: a motion to reopen adversary proceedings filed in bankruptcy court in the

18

Southern District of New York, an order directing payment of fee or amended IFP application in

19

the Southern District of New York, an application to proceed IFP filed in the Southern District of

20

New York, and an order denying an ex parte application for shortening of time filed in bankruptcy

21

court in the Northern District of California, among several others. None of these matters can be

22

removed.

23

With regard to the San Francisco Superior Court case referenced herein, defendant has

24

transmitted to this court the following: (i) a notice of appeal regarding an August 31, 2017 order,

25

filed on September 28, 2017; (ii) an August 31, 2017 order authorizing service of summons and

26

complaint by posting and mailing; (iii) a partial copy of the docket; and (iv) a judgment for

27

plaintiff in the amount of $7,425.00, entered on October 2, 2017 for an unlawful detainer. (Dkt.

28

No. 1 at 12–14; 23–26.) These are similarly not removable.

1

Concurrently, defendant filed an application to proceed in forma pauperis. (Dkt. No. 3.)

2

However, defendant’s filing does not provide sufficient facts demonstrating his need for relief

3

with regard to filing fees. In fact, his application lists multiple individuals as declarants, and

4

appears to be copied whole-sale from defendant’s previous attempt at removing what appears to be

5

the same action earlier this year. See Docket, Mosser Cos., Inc. v. Eberwein, et al., No. 17-CV-

6

3678-HSG (N.D. Cal.).

7

Plaintiff’s complaint is DISMISSED WITHOUT PREJUDICE to identify the basis of removal
jurisdiction and identify what pending complaint, if any, he seeks to remove from state court. See

9

28 U.S.C. § 1441 (“[A]ny civil action brought in a State court of which the district courts of the

10

United States have original jurisdiction, may be removed by the defendant or the defendants, to

11
United States District Court
Northern District of California

8

the district court of the United States for the district and division embracing the place where such

12

action is pending.”). If plaintiff fails to respond within twenty-eight (28) days of this Order, the

13

Clerk of the Court shall terminate the docket and close the file.

14

IT IS SO ORDERED.

15
16

Dated: October 13, 2017
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
2