Resol Group LLC v. Scarlett

Filing 28

ORDER DENYING 15 APPLICATION TO PROCEED IN FORMA PAUPERIS, REMANDING CASE TO STATE COURT. Plaintiff's 21 Motion to Dismiss DENIED as moot. IT IS HEREBY ORDERED that this case be REMANDED to the Superior Court for the County of Santa Clara. The Clerk of the Court shall close the case file. Signed by Hon. Beth Labson Freeman on 8/31/2015. (blflc2, COURT STAFF) (Filed on 8/31/2015)

Download PDF
1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 RESOL GROUP LLC, et al., 7 Case No. 15-cv-03245-BLF Plaintiffs, 8 v. 9 SIDNEY T. SCARLETT, 10 Defendant. ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS, REMANDING CASE TO STATE COURT United States District Court Northern District of California 11 12 13 In this action, pro se defendant Sidney T. Scarlett seeks to remove a case originally filed 14 by plaintiff Resol Group LLC in the Superior Court of California for the County of Santa Clara. 15 This Court denied without prejudice Scarlett’s Application to Proceed In Forma Pauperis (“IFP”) 16 on July 20, 2015 and ordered him to file a signed application along with an amended Notice of 17 Removal. ECF 11. On August 5, 2015, the Court granted Scarlett’s request for an extension of 18 time in which to file the ordered amendment and deferred ruling on his renewed Application to 19 Proceed IFP until such time as the Court could determine that this removal is not frivolous. ECF 20 18. On August 26, 2015, Scarlett filed his amended Notice of Removal. Am. Notice, ECF 20, 27. This appears to be Scarlett’s third attempt to remove the same state court action. Case 21 22 number 114-CV-267656, the subject of Scarlett’s removal notice, was filed on July 8, 2014. See 23 Am. Notice Exh. 2 (State Court Compl.).1 In the complaint in that action, Resol Group asserts 24 state law claims against Scarlett for quiet title, cancellation of recorded instrument, declaratory 25 relief, slander of title, and civil conspiracy. Id. There is no federal question on the face of Resol 26 Group’s complaint. Indeed, this Court remanded Scarlett’s two prior attempts to remove this very 27 28 1 The state court complaint begins at page 30 of 81 at ECF 27-3. 1 same case, explaining that there is no federal question subject-matter jurisdiction under 28 U.S.C. 2 § 1331 because there is no federal claim on the face of Resol Group’s complaint and that there is 3 no diversity jurisdiction under § 1332 because both Scarlett and Resol Group are citizens of 4 California. See Scarlett v. Resol Grp. LLC, No. 5:14-CV-05512 EJD, 2015 WL 602981, at *2-3 5 (N.D. Cal. Feb. 11, 2015); Resol Grp. LLC v. Scarlett, No. 14-CV-04402-LHK, 2014 WL 6 6766258, at *3 (N.D. Cal. Dec. 1, 2014). That conclusion has not changed. Although Scarlett in his Amended Notice of Removal now alleges that “Resol Group, 7 LLC, is a professional corporation headquartered in California but it’s believed its members reside 9 outside the state,” Am. Notice ¶ 6, that is beside the point because a corporation is deemed to be a 10 citizen of the state “where it has its principal place of business,” 28 U.S.C. § 1332(c)(1). As such, 11 United States District Court Northern District of California 8 that Resol Group’s members reside outside the state does not detract from Scarlett’s allegation that 12 Resol Group is headquartered in California and therefore a citizen of California.2 Nor does 13 Scarlett’s inclusion of Suntrust Mortgage, Inc., a corporation headquartered in Roanoke, Virginia, 14 alter the outcome. Am. Notice ¶ 5. “[D]iversity jurisdiction does not exist unless each defendant 15 is a citizen of a different State from each plaintiff,” Owen Equip. & Erection Co. v. Kroger, 437 16 U.S. 365, 373 (1978) (emphasis in original), and here Scarlett and Resol Group are not diverse. Furthermore, Scarlett’s attempt to invoke federal jurisdiction by asserting a “cross- 17 18 complaint for FDCPA violations” is unavailing.3 Am. Notice ¶ 11. However Scarlett may style 19 his FDCPA claim, it does not appear on the face of Resol Group’s state court complaint. As this 20 Court already explained, “federal question jurisdiction does not arise from an actual or anticipated 21 cross-claim or counterclaim since those claims are not contained in the Complaint, nor can it be 22 created by some alternative constitutional interpretation of the pleading.” Scarlett v. Resol Grp. 23 LLC, 2015 WL 602981, at *2. Scarlett’s purported FDCPA cross-claim is therefore insufficient to 24 25 26 27 2 Furthermore, Resol Group’s own complaint indicates that it is a limited liability company organized and existing under the laws of the State of California and that it does business in Santa Clara County, California, thereby establishing that Resol Group is a citizen of California for purposes of 28 U.S.C. § 1332. See State Court Compl. ¶ 1. 3 28 The FDCPA is the federal Fair Debt Collection Practices Act. 15 U.S.C. § 1692. 2 1 invoke this Court’s jurisdiction pursuant to 28 U.S.C. § 1331. 2 Because this Court has no subject-matter jurisdiction over the case sought to be removed, 3 Scarlett’s Notice of Removal is frivolous. The Court accordingly DENIES Scarlett’s Application 4 to Proceed IFP. 28 U.S.C. § 1915(e)(2)(B). Furthermore, in light of the fact that this Court lacks 5 subject-matter jurisdiction over the removed dispute, IT IS HEREBY ORDERED THAT this case 6 be REMANDED to the Superior Court for the County of Santa Clara.4 Scarlett is on notice that any further attempts to remove Case No. 114-CV-267656 may 7 8 result in sanctions, including the institution of a pre-filing order. Bridgewater v. Hayes Valley Ltd. 9 Partnership, No. 10-03022 CW, 2011 WL 635268 at *4 (N.D. Cal., Feb. 11, 2011); see generally 10 Molski v. Evergreen Dynasty Corp., 500 F.3d 1047 (9th Cir. 2007). IT IS SO ORDERED. United States District Court Northern District of California 11 12 Dated: August 31, 2015 ______________________________________ BETH LABSON FREEMAN United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Resol Group’s recently filed Motion to Remand, ECF 21, is DENIED as moot. 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?