GATB, LLC v. Johnson et al

Filing 3

ORDER Denying Motion to Proceed In Forma Pauperis; and Order of Remand.. Signed by Judge Larry Alan Burns on 6/23/2017.(All non-registered users served via U.S. Mail Service)(cc: Superior Court of the State of California for the County of San Joaquin)(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GATB, LLC,

Case No.: 17cv1236-LAB (NLS)
Plaintiff,

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v.

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ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS;
AND

SHARON JOHNSON; NIGEL LAMAR
JOHNSON; AND DOES 1 to 5,

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ORDER OF REMAND

Defendants.

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Defendant Nigel Lamar Johnson filed a notice of removal along with a motion to

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proceed in forma pauperis (“IFP”). Defendant Sharon Johnson did not join in the removal

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and did not file a motion to proceed IFP.

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The IFP motion is incomplete. Besides omitting a good deal of information about

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Nigel Johnson’s assets, it says nothing about Sharon Johnson and whether she is able to

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help pay the filing fee. See Deutsche Bank National Trust Company v. Andrukov, 2017

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WL 838221, slip op. at *1 (W.D. Wash., Mar. 3, 2017) (noting that IFP application was

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deficient because not all of the removing defendants had completed one). See also

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Anderson v. California, 2010 WL 4316996, at *1 (S.D. Cal., Oct. 27, 2010) (requiring each

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plaintiff to qualify for IFP status). The motion to proceed IFP is DENIED.

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///
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17cv1236-LAB (NLS)

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The notice of removal is also defective on many levels. Besides violating Civil Local

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Rule 5.1 regarding legibility, it purports to remove the case from the Superior Court of the

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State of California for the County of San Joaquin, which is in the Eastern District of

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California. See 28 U.S.C. '1441(a) providing for removal of cases from state court to the

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federal district court for the district embracing the place where such action is pending).

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Courts are divided regarding whether a case removed to the wrong district court should be

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transferred or remanded. See, e.g., Soundview Communications, Inc. v. Lotus Mgt., LLC,

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2013 WL 5954793 at *2 (N.D. Cal., Nov. 6, 2013) (comparing cases); Tanzman v. Midwest

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Exp. Airlines, Inc., 916 F. Supp. 1013 (S.D. Cal. 1996) (explaining that if a defendant

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removes the case to the wrong district court, the court has discretion either to transfer or

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remand).

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But the most serious flaw is that the Court lacks jurisdiction over the case. If

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jurisdiction over a removed case is lacking, the Court must remand it. 28 U.S.C. §1447(c);

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see Brockman v. Merabank, 40 F.3d 1013, 1015–16 (9th Cir. 1994).

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This is an unlawful detainer action which does not involve any substantial federal

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question. The amount in controversy is less than $10,000 and the parties are not diverse,

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so the Court cannot exercise diversity jurisdiction. The notice of removal only suggests

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that removal is proper because the “defendant will not be able to receive a fair hearing or

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trial” in state court. (Compl., &11.) This apparently is a reference to 28 U.S.C. § 1443.

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Section 1443 provides for removal of civil actions where a defendant’s federal rights

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won’t be respected in state court. The notice of removal doesn’t identify any particular

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federally-protected right the Johnsons have sought to enforce, or a state law that prevents

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them from enforcing their federally-protected civil rights. See Four Keys Leasing &

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Maintenance Corp. v. Simithis, 849 F.2d 770, 773–74 (2d Cir. 1988) (discussing standard

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for § 1443(1) removal). Federal courts routinely decline to exercise jurisdiction over

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simple unlawful detainer actions such as this one. See Calif. Housing Fin. Agy. v. Zulali,

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2012 WL 3542269 at *1 (S.D. Cal., Aug. 2, 2012). The notice of removal’s bare assertion

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that Nigel Johnson can’t get a fair trial in state court is plainly insufficient. See Murray v.
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17cv1236-LAB (NLS)

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Deer Park Union Free School Dist., 154 F. Supp. 2d 424, 426–27 (E.D.N.Y. 2001)

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(holding § 1443(1) removal petition “insufficient on its face,” that made only vague and

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conclusory assertions that the state court would not protect his federal civil rights).

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Because the Court lacks jurisdiction over the claims, this action is REMANDED to
the Superior Court of the State of California for the County of San Joaquin.

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IT IS SO ORDERED.
Dated: June 23, 2017

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17cv1236-LAB (NLS)