Jeff Miller v. Joseph Glenn Osborne et al

Filing 4

ORDER Granting 2 Motion for Leave to Proceed in forma pauperis; Order to Show Cause re: Remand; and Order Vacating Hearing. Osborne is ordered to show cause why the case should not immediately be remanded. He may do so by filing his written opposition to the motion for remand by 4/18/2018. The hearing on 3 the motion for remand is vacated. Signed by Judge Larry Alan Burns on 4/11/2018. (All non-registered users served via U.S. Mail Service)(jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JEFF MILLER,

Case No.: 18cv279-LAB (NLS)
Plaintiff,

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v.

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JOSEPH GLENN OSBORNE, et
al.,

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Defendant.

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ORDER GRANTING MOTION TO
PROCEED IN FORMA
PAUPERIS;
ORDER TO SHOW CAUSE RE:
REMAND; AND
ORDER VACATING HEARING

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Defendant Joseph Osborne, proceeding pro se, removed this action from

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state court, identifying federal question as the basis for the Court’s exercise of

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jurisdiction. Although the claims are pled under state law, Osborne argues they

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are completely preempted by federal law.

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Osborne did not pay the filing fee, but filed a motion to proceed in forma

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pauperis (“IFP”). The IFP motion shows Osborne lacks the funds to pay the filing

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fee, and leave to proceed IFP is GRANTED.

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Actions commenced under the IFP statute, 28 U.S.C. § 1915(e), are subject

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to a mandatory screening.

In addition, the Court is obligated to inquire into

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jurisdiction over removed action and to remand cases where jurisdiction is lacking,
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18cv279-LAB (NLS)

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sua sponte if necessary. See Mt. Healthy City School Dist. Bd. of Ed. v. Doyle,

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429 U.S. 274, 278 (1977) (holding that federal courts must inquire sua sponte

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whenever its jurisdiction is in doubt); Smith v. Mylan, Inc., 761 F.3d 1042, 1044 (9th

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Cir. 2014) (citing 28 U.S.C. ' 1447(c)) (holding that district courts must remand

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removed case sua sponte if at any time before final judgment it appears that

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jurisdiction is lacking).

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Plaintiff Jeff Miller, who is represented by counsel, filed a motion to

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remand with a hearing date of April 16, 2018. As the removing party, Osborne

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bears the burden of showing that the Court has jurisdiction over this case. See

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Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Under Civil Local Rule

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7.1(e)(2), the opposition was due April 2, but Osborne has filed none. Under Civil

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Local Rule 7.1(f)(3)(c), failure to file an opposition may be construed as consent to

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the motion’s being granted.

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Osborne is ORDERED TO SHOW CAUSE why the case should not

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immediately be remanded. He may do so by filing his written opposition to the

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motion for remand by April 18, 2018. If he fails to show cause within the time

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permitted, this action will be remanded. The hearing on the motion for remand is

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VACATED.

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IT IS SO ORDERED.
Dated: April 11, 2018

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Hon. Larry Alan Burns
United States District Judge

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18cv279-LAB (NLS)