Moore et al v. Moore

Filing 5

ORDER Remanding Action To State Court: Plaintiff's motion to remand (Doc. 3 ) is granted. This case is remanded to state court. All other pending motions in this case (Docs. 2 , 4 ) are denied as moot. Signed by Judge William Q. Hayes on 9/29/2009. (All non-registered users served via U.S. Mail Service; certified copy of order sent to San Diego Superior Court, East County Division, El Cajon, CA, their case number: 37-2009-00034110-CL-UD-EC.) (mdc) (av1).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 HAYES, Judge: 17 The matter before the Court is Plaintiff's motion to remand to state court (Doc. # 3). 18 Plaintiff sued Defendant in California State Court on May 11, 2009 for nonpayment of rent 19 (Doc. #3 at 4). Defendant, proceeding pro se, filed an answer on June 5, 2009 (Doc. # 3-2 at 20 10). Defendant then filed a notice of removal on June 22, 2009, removing the case to federal 21 court (Doc # 1, No. 09cv1287 BEN (NLS)). The case was remanded to state court on July 17, 22 2009 on the grounds that "[t]he nonsensical Notice of Removal provides no basis for the 23 Court's jurisdiction." Moore v. Moore, No. 09cv1287 BEN (NLS), slip op. at 2 (S.D. Cal. Jul. 24 17, 2009). The case was set for trial in the state court on August 7, 2009 (Doc. # 3 at 2). 25 Defendant again filed a notice of removal which fails to state any basis for federal jurisdiction 26 on August 4, 2009 before this Court (Doc. # 1). 27 As the party seeking removal, Defendant bears the burden of establishing federal 28 jurisdiction. See Redwood Theatres v. Festival Enterprises, Inc., 908 F.2d 477, 479 (9th Cir.
-109cv1681 WQH (CAB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

HAL MOORE, vs. ANITA M. MOORE, Plaintiff,

CASE NO. 09cv1681 WQH (CAB) ORDER REMANDING ACTION TO STATE COURT

Defendant.

1 1990). The allegations in Plaintiff's complaint arise solely under state law and Defendant does 2 not allege diversity jurisdiction (Doc. # 1). Defendant's sole reference to a federal law 3 allegedly authorizing removal is to 28 U.S.C. § 1446. Section 1446 sets out the procedure for 4 removing a case to federal court, but is not itself a basis for federal jurisdiction. Furthermore, 5 § 1446(b) requires notice of removal be filed within thirty days "after the receipt by the 6 defendant" of a copy of the initial pleading. In addition to failing to state a basis for federal 7 jurisdiction, this removal notice is therefore untimely. 8 9 10 11 IT IS HEREBY ORDERED that: (1) Plaintiff's motion to remand (Doc. # 3) is GRANTED. (2) This case is remanded to state court. (3) All other pending motions in this case (Docs. # 2, 4) are DENIED as moot.

12 DATED: September 29, 2009 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
-209cv1681 WQH (CAB)

WILLIAM Q. HAYES United States District Judge