Belssner v. Zhou

Filing 3

REPORT AND RECOMMENDATION Recommending that this case be REMANDED to Las Vegas Justice Court re 1 Receipt of Initiating Documents. Objections to R&R due by 11/14/2017. Signed by Magistrate Judge Nancy J. Koppe on 10/31/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CHARLES N. BELSSNER,
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Plaintiff(s),
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v.
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LIN ZHOU,
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Defendant(s).
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Case No. 2:17-cv-02737-RFB-NJK
REPORT AND
RECOMMENDATION

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Apparently unhappy with his proceedings in Las Vegas Justice Court, see Docket No. 1-1,

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Plaintiff has attempted to remove his state court action to this Court pursuant to 28 U.S.C. § 1441,

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Docket No. 1. Pursuant to that statute, “[a]ny civil action brought in a State court of which the district

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courts of the United States have original jurisdiction, may be removed by the defendant or the

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defendants, to the district court of the United States for the district and division embracing the place

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where such action is pending.” 28 U.S.C. § 1441(a) (emphasis added). By the plain text of this statute,

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it has long been established that a plaintiff is not entitled to remove his state court case to federal court.

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See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107-08 (1941); see also Progressive West Ins.

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Co. v. Preciado, 479 F.3d 1014, 1017 (9th Cir. 2007) (recognizing “Shamrock’s longstanding rule that

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a plaintiff/cross-defendant cannot remove an action to federal court”); Hopkins v. Am. Home Mortg.

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Serv’g, Inc., 2013 WL 1800049, at *3 (N.D. Cal. Apr. 29, 2013) (collecting cases regarding this “well-

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known, bright-line rule”). Plaintiff is not entitled here to remove a case that he filed in state court.

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Not only is Plaintiff seeking removal, he is also apparently seeking to appeal in this Court the

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judgment entered against him in state court. See Docket No. 1-1 at 6. It is well-settled that a federal

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district court does not have appellate jurisdiction over a state court, whether by direct appeal, mandamus,

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or otherwise. See, e.g., Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Bianchi v. Rylaarsdam, 334

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F.3d 895, 898 (9th Cir. 2003).

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Accordingly, the undersigned RECOMMENDS that this case be REMANDED to Las Vegas
Justice Court.
DATED: October 31, 2017
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Nancy J. Koppe
United States Magistrate Judge

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NOTICE

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Pursuant to Local Rule IB 3-2, any objection to this Report and Recommendation must be in

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writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has held

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that the courts of appeal may determine that an appeal has been waived due to the failure to file

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objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also

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held that (1) failure to file objections within the specified time and (2) failure to properly address and

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brief the objectionable issues waives the right to appeal the District Court’s order and/or appeal

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factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir.

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1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

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