U.S. Bank National Association v. Briscoe

Filing 11

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Judge Dales Order 10 is INCORPORATED by reference and ADOPTED in its entirety. Plaintiff's Motion to Take Judicial Notice 7 is GRANTED. Plaintiff's Motion to Remand to State Court 5 is GRA NTED. Plaintiff's Application to Proceed in Forma Pauperis 2 is MOOT and is therefore DENIED. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
PROF-2013-S3 LEGAL TITLE TRUST,
BY U.S. BANK NATIONAL
ASSOCIATION, AS LEGAL TITLE
TRUSTEE,

Case No. 4:17-cv-00336-DCN
MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
VERN A. BRISCO: SANDRA M.
BRISCOE ET. AL.,
Defendants.
On August 11, 2017, Defendant Vern Briscoe filed a Notice of Removal with the
Court (Dkt. 1) and an Application for Leave to Proceed in forma pauperis (Dkt. 2). On
September 8, 2017, Plaintiff U.S. Bank National Association filed a Motion to Remand to
State Court (Dkt. 5), and a Motion to Take Judicial Notice (Dkt. 7).
On October 4, 2017, this case was reassigned to the undersigned District Judge
based upon the Order (Dkt. 10) issued by Magistrate Judge Candy W. Dale,
recommending the review and consideration of the various Motions. The Ninth Circuit
has determined that a motion to remand is dispositive and when the parties in a case fail
to consent to have a case assigned to a United States Magistrate Judge, a United States
District Judge must enter a final order under 28 U.S.C. § 636.

MEMORANDUM DECISION AND ORDER - 1

The Court has reviewed the record in this matter and finds the Order (Dkt. 10) and
the recommendations contained therein to be well-founded in the law based on the facts
of this case. Judge Dale took judicial notice of the underlying state court proceedings in
this matter and correctly ruled that not only was the notice of removal in this matter
untimely under 28 U.S.C. § 1446(b), but there is no basis for federal jurisdiction under 28
U.S.C. § 1331. Removal in this instance appears to be an attempt by Briscoe to avoid the
pending summary judgment motion in state court. This action, therefore, must be
remanded to the appropriate venue—Idaho State Court, Bannock County.
ORDER
IT IS ORDERED:
1.

Judge Dale’s Order (Dkt. 10) is INCORPORATED by reference and
ADOPTED in its entirety.

2.

Plaintiff’s Motion to Take Judicial Notice (Dkt. 7) is GRANTED.

3.

Plaintiff’s Motion to Remand to State Court (Dkt. 5) is GRANTED.

4.

Plaintiff’s Application to Proceed in Forma Pauperis (Dkt. 2) is MOOT
and is therefore DENIED.

DATED: October 17, 2017
_________________________
David C. Nye
U.S. District Court Judge

MEMORANDUM DECISION AND ORDER - 2