Valencia v. Valencia

Filing 9

ORDER ADOPTING 5 MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; AND REMANDING ACTION TO THE SANTA CLARA COUNTY SUPERIOR COURT. Signed by Judge Beth Labson Freeman on 12/5/2017. (blflc1S, COURT STAFF) (Filed on 12/5/2017)

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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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VICTORIA VALENCIA,
Plaintiff,

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v.

United States District Court
Northern District of California

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MICHAEL VALENCIA,

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Defendant.

Case No. 17-cv-06581-BLF
ORDER ADOPTING MAGISTRATE
JUDGE’S REPORT AND
RECOMMENDATION; AND
REMANDING ACTION TO THE
SANTA CLARA COUNTY SUPERIOR
COURT
[Re: ECF 5]

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Defendant Michael Valencia, proceeding pro se, removed this unlawful detainer action

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from the Santa Clara County Superior Court on November 14, 2017. Notice of Removal, ECF 1.

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The Notice of Removal asserts federal subject matter jurisdiction based on federal questions raised

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in his demurrer to Plaintiff’s state court complaint. Id. at 2.

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On November 17, 2017, Magistrate Judge Howard R. Lloyd, to whom the case originally

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was assigned, issued an order which granted Defendant’s motion for leave to proceed in forma

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pauperis, directed the Clerk of the Court to reassign the case to a district judge, and included a

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Report and Recommendation (“R&R”) that the case be remanded to the superior court for lack of

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subject matter jurisdiction. R&R, ECF 5.

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When a magistrate judge issues an R&R regarding a case-dispositive matter, a party may

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file “specific written objections” to the R&R within 14 days after being served with the R&R.

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Fed. R. Civ. P. 72(b)(2). If the party is served with the R&R by mail, that 14-day period is

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extended by 3 days. See Fed. R. Civ. P. 6(d) (“When a party may or must act within a specified

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time after being served and service is made under Rule 5(b)(2)(C) (mail) . . . , 3 days are added

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after the period would otherwise expire.”). “The district judge must determine de novo any part of

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the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3).

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“When no timely objection is filed, the court need only satisfy itself that there is no clear error on

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the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72, Adv. Comm.

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Notes to 1983 Amend.; see also Grasdalen v. Shartle, No. CV 15-0299-TUC-JGZ (BGM), 2016

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WL 4138274, at *1 (D. Ariz. Aug. 4, 2016) (district court reviews for clear error where no

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objections are filed); Evony, LLC v. Aeria Games & Entm’t, Inc., No. C 11-0141 SBA, 2014 WL

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12658953, at *1 (N.D. Cal. June 12, 2014) (same).

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Defendant was served with the R&R by mail on November 17, 2017. Certificate of
Service, ECF 6. He therefore had until December 4, 2017 to file objections. No objections have

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United States District Court
Northern District of California

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been filed. Accordingly, this Court reviews Judge Lloyd’s R&R only for clear error. This Court

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finds no error in Judge Lloyd’s determination that this Court lacks subject matter jurisdiction over

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the action. Accordingly, the Court hereby ADOPTS Judge Lloyd’s R&R and REMANDS the

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case to the Santa Clara County Superior Court.

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Defendant is advised that subsequent attempts to remove this unlawful detainer action to

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federal court may result in sanctions.

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IT IS SO ORDERED.

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Dated: December 5, 2017
______________________________________
BETH LABSON FREEMAN
United States District Judge

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