Valencia v. Valencia

Filing 9


Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 VICTORIA VALENCIA, Plaintiff, 9 10 v. United States District Court Northern District of California 11 MICHAEL VALENCIA, 12 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] 13 14 15 Defendant Michael Valencia, proceeding pro se, removed this unlawful detainer action 16 from the Santa Clara County Superior Court on November 14, 2017. Notice of Removal, ECF 1. 17 The Notice of Removal asserts federal subject matter jurisdiction based on federal questions raised 18 in his demurrer to Plaintiff’s state court complaint. Id. at 2. 19 On November 17, 2017, Magistrate Judge Howard R. Lloyd, to whom the case originally 20 was assigned, issued an order which granted Defendant’s motion for leave to proceed in forma 21 pauperis, directed the Clerk of the Court to reassign the case to a district judge, and included a 22 Report and Recommendation (“R&R”) that the case be remanded to the superior court for lack of 23 subject matter jurisdiction. R&R, ECF 5. 24 When a magistrate judge issues an R&R regarding a case-dispositive matter, a party may 25 file “specific written objections” to the R&R within 14 days after being served with the R&R. 26 Fed. R. Civ. P. 72(b)(2). If the party is served with the R&R by mail, that 14-day period is 27 extended by 3 days. See Fed. R. Civ. P. 6(d) (“When a party may or must act within a specified 28 time after being served and service is made under Rule 5(b)(2)(C) (mail) . . . , 3 days are added 1 after the period would otherwise expire.”). “The district judge must determine de novo any part of 2 the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). 3 “When no timely objection is filed, the court need only satisfy itself that there is no clear error on 4 the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72, Adv. Comm. 5 Notes to 1983 Amend.; see also Grasdalen v. Shartle, No. CV 15-0299-TUC-JGZ (BGM), 2016 6 WL 4138274, at *1 (D. Ariz. Aug. 4, 2016) (district court reviews for clear error where no 7 objections are filed); Evony, LLC v. Aeria Games & Entm’t, Inc., No. C 11-0141 SBA, 2014 WL 8 12658953, at *1 (N.D. Cal. June 12, 2014) (same). 9 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 11 United States District Court Northern District of California 10 been filed. Accordingly, this Court reviews Judge Lloyd’s R&R only for clear error. This Court 12 finds no error in Judge Lloyd’s determination that this Court lacks subject matter jurisdiction over 13 the action. Accordingly, the Court hereby ADOPTS Judge Lloyd’s R&R and REMANDS the 14 case to the Santa Clara County Superior Court. 15 Defendant is advised that subsequent attempts to remove this unlawful detainer action to 16 federal court may result in sanctions. 17 IT IS SO ORDERED. 18 19 20 21 Dated: December 5, 2017 ______________________________________ BETH LABSON FREEMAN United States District Judge 22 23 24 25 26 27 28 2

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?