NGA Investment, LLC v. Beronilla et al

Filing 12

ORDER ADOPTING 9 REPORT AND RECOMMENDATION AND PRE-FILING ORDER. This action is hereby remanded to the Superior Court of California for the County of Santa Clara. Signed by Hon. Beth Labson Freeman on 8/4/2014. (blflc2, COURT STAFF) (Filed on 8/4/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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NGA INVESTMENT, LLC,
Plaintiff,

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v.
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REUBEN BERONILLA, et al.,

Case No. 14-cv-02457-BLF
ORDER ADOPTING REPORT AND
RECOMMENDATION AND PREFILING ORDER
[Re: ECF Nos. 5, 9]

United States District Court
Northern District of California

Defendants.
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This is an unlawful detainer action originating in Santa Clara County Superior Court that

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pro se defendants Reuben and Maria Beronilla have serially removed to federal court, despite

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three prior orders informing them that there was no basis for federal jurisdiction. Before the Court

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is Magistrate Judge Howard R. Lloyd’s “Report and Recommendation That Plaintiff’s Motion For

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Remand and Sanctions Be Granted,” filed July 14, 2014. (ECF 9) Judge Lloyd recommends that

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the Court grant Plaintiff’s motion to remand the case back to Santa Clara County Superior Court,

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grant Plaintiff’s motion for sanctions, and sanction Defendants by issuing a narrowly tailored pre-

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filing order instructing the Clerk of the Court not to accept any further removal filings pertaining

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to Santa Clara County Superior Court case number 114CV261245 without prior written approval

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from a judge of this district. (Id. at 8)

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On July 29, 2014, Defendants filed a timely objection to Judge Lloyd’s Report and

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Recommendation. (Def.’s Obj., ECF 11) Defendants did not identify any specific portion of the

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Report and Recommendation to which they object, arguing instead that they did not consent to

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Judge Lloyd’s jurisdiction in deciding Plaintiff’s Motion to Remand and Request for Sanctions.

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(See Def.’s Obj. 2-7) Defendants’ argument is without merit.

As a preliminary matter, pursuant to the local rules of this Court, Defendants were placed

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on notice that their case had been assigned to a Magistrate Judge upon removal. (See Order

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Setting Initial Case Management Conference and ADR Deadlines, ECF 3; see also General Order

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44, available at http://www.cand.uscourts.gov/filelibrary/132/G.O.%2044_Rev_12.17.13.pdf.)

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Defendants were given ample time and opportunity to decline magistrate judge jurisdiction, yet

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they never filed the required written declination form. In fact, Defendants went so far as to

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respond to Plaintiff’s Motion for Remand without indicating their objection to magistrate judge

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jurisdiction. (See Def.’s Opp., ECF 8; see also Civ. L.R. 73-1(a)(2) (requiring parties to file

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written consent or declination within 7 days after filing of motion that cannot be heard by

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magistrate judge without consent of the parties))
Setting aside Defendants’ failure to decline magistrate judge jurisdiction, Judge Lloyd

United States District Court
Northern District of California

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fully complied with 28 U.S.C. § 636(b), Federal Rule of Civil Procedure 72(b), and this district’s

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local rules by entering a Report and Recommendation for review by a randomly assigned district

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judge. (See Report and Recommendation, ECF 9) Notably, Judge Lloyd did not enter judgment

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against Defendants, despite their continued failure to file a written consent or declination to

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magistrate judge jurisdiction. As the district judge randomly assigned to this case by the Clerk of

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the Court, (see Order Reassigning Case, ECF 10), the undersigned “may accept, reject, or modify,

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in whole or in part, the findings or recommendations made by the magistrate judge,” 28 U.S.C. §

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636(b).

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Because Defendants timely objected to Judge Lloyd’s Report and Recommendation, this

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Court conducts a de novo review of the report.1 Id. Having reviewed the entire record de novo,

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this Court finds Judge Lloyd’s Report and Recommendation to be correct, well-reasoned, and

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well-founded in fact and in law. Defendants have been repeatedly informed by judges of this

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court that there is no federal jurisdiction over this unlawful detainer action because no federal

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question appears on the face of the complaint and because removal on the basis of diversity

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The Court notes that Defendants failed to identify specific portions of the report to which they
object, as required by 28 U.S.C. § 636(b), Federal Rule of Civil Procedure 72(b)(2), and Civil
Local Rule 72-3. Nevertheless, in view of Defendants’ pro se status, this Court shall conduct a de
novo review of the record and report.
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jurisdiction is barred by 28 U.S.C. § 1441(b)(2) due to Defendants’ residency in California. (See

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NGA Investment, LLC v. Beronilla, No. 5:14-cv-01357 PSG (ECF 11); NGA Investment, LLC v.

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Beronilla, No. 5:14-cv-01842 BLF (ECF 4, 7)) That Defendants seek to raise issues of Plaintiff’s

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standing and “fraud upon the Court,” (see Def.’s Obj. 7), is not sufficient to confer federal

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jurisdiction because those purported federal questions do not appear on the face of Plaintiff’s

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complaint. Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1086 (9th Cir.

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2009). Defendants’ serial attempts to remove this case to federal court are accordingly frivolous

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and in violation of prior court orders remanding the case for lack of jurisdiction. The Court

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therefore adopts the Report and Recommendation in every respect.
Plaintiff’s Motion to Remand is GRANTED, and the action is hereby remanded to the

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United States District Court
Northern District of California

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Superior Court of California for the County of Santa Clara.2
For the reasons stated above and in Judge Lloyd’s Report and Recommendation, the Court

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finds Reuben Beronilla and Maria V. Beronilla to be vexatious litigants. IT IS HEREBY

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ORDERED that before filing any further notices of removal of Santa Clara County Superior Court

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case number 114CV261245, Reuben Beronilla and Maria V. Beronilla must first file a motion

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with the court seeking leave to file a notice of removal. Any such motion must include: (1) a copy

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of Judge Lloyd’s Report and Recommendation issued in this case, (2) a copy of this order, and (3)

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a copy of the proposed filing. The Clerk of the Court shall not accept for filing any further notices

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of removal of Santa Clara County Superior Court case number 114CV261245 unless accompanied

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by an order from a judge of this district granting Defendants leave to file the removal papers.

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IT IS SO ORDERED.

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Dated: August 4, 2014
______________________________________
BETH LABSON FREEMAN
United States District Judge

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Defendants’ Application to Proceed In Forma Pauperis, (ECF 2), is accordingly DENIED as
moot.
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