Aaronson v Aaronson

Filing 10

ORDER: Denying Motion for a Temporary Restraining Order 8 . This action is remanded to state court. IT IS SO ORDERED. Signed on 12/11/2013 by Judge Owen M. Panner. (dkj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
ITAI AARONSON,
No. 1:13-cv-2080-PA
Plaintiff,

v.
ORLY AARONSON, et al.,

ORDER

Defendants.
FANNER, District Judge:

Plaintiff Itai Aaronson seeks to remove a prbbate matter that
is now pending in Jackson County Circuit Court.

Plaintiff also

moves for a temporary restraining order prohibiting defendant Orly
Aaronson from proceeding in the state court probate action.
This is the second federal action plaintiff has filed seeking
to remove the state court probate action to this court.

In first ,

federal action, Magistrate Judge Mark D. Clarke granted
defendant's motion to remand.

Aaronson v. Aaronson, No. 1:13-cv-

1959-CL, ECF No. 25 (D. Or. Nov. 18, 2013).
1 - ORDER

I remand this probate action to state court.

I dismiss

plaintiff's claims against the state court judge and a state court
administrator.

I deny plaintiff's motion for a temporary

restraining order.
DISCUSSION
I.

Factual and Procedural Background
The following background information is from_plaintiff's

pleadings and exhibits submitted in this action and the prior
federal action.

The probate matter pending in Jackson County

Circuit Court concerns a dispute between plaintiff and defendant
over the place of burial for their adult son, Orner Aaronson.

Orner

Aaronson died on September 30, 2013, while visiting plaintiff, his
father,

in Oregon.

Orner Aaronson's remains were buried in Oregon.

Plaintiff and defendant are citizens of Israel who have been
divorced for many years.

Defendant, the mother of the deceased,

is a resident of Israel.

Plaintiff is a permanent resident of the

United States.
Shortly after Orner Aaronson's death, defendant obtained a
judgment in Israel that requires the exhumation and transportation
of Orner Aaronson's remains to

I~rael

for re-burial there.

Defendant then filed the probate action in Jackson County Circuit
Court, where she seeks to register the Israeli judgment.
Defendant was named personal representative for the intestate
estate of Orner Aaronson.
In the prior federal action brought by plaintiff to remove
the probate proceeding to this court, defendant filed a motion to

2 - ORDER

remand.

Magistrate Judge

Clark~

reviewed the briefs and do6uments

filed by the parties, and heard oral argument on the motion to
remand.

Judge Clarke allowed plaintiff to file additiorial papers

because plaintiff stated he had not been given enough time to file
a proper response.
On November 18, 2013, Judge Clarke granted defendant's motion
to remand.

Judge Clarke issued a judgment accordingly and the

Clerk of this Court sent the case file back to the state court.
On November 25, 2013, plaintiff filed the current action and
5

another notice of removal as to the probate matter.

On December

5, 2013, plaintiff filed an amended complaint and a motion for a
temporary restraining order.

In the amended complaint, plaintiff

brings claims against the state court judge who is presiding over
the probate matter, and a state court administrator who is
~llegedly

II.

responsible for training judges.

Plaintiff's Second Attempt To Remove the Probate Action

Plaintiff argues that in the prior federal action, Judge
Clarke improperly ruled on the motion to remand without allowing
plaintiff to file objections with a district judge.

If a

magistrate judge rules on a pretrial motion that is "dispositive
of a claim or defense," and the parties have not consented to a
magistrate judge, a district judge must review the magistrate
judge's ruling.

Fed. R. Civ. P. 72 (b) (1).

The Ninth Circuit has not addressed whether a motion to
remand is a dispositive motion.

Judge Garr M. King of this court

has ruled that "a motion to remand is a dispositive motion."

3 - ORDER

Hood

Custom Homes, LLC v.
WL 1531784, at *1

Ill. Nat'l Ins. Co., No.

(D. Or. May 26,

Beemiller, 527 F. 3rd 259, 265

2009)

08-cv-1506-JE, 2009

(citing William v.

(2d Cir. 2008)

(agreeing with

decisionslfrom the Third, Sixth, and Tenth Circuits that motions
to remand are dispositive)); but
Texaco Exploration & Prod;,
Tex. 1994)

see,~'

Inc.,

Vaguillas Ranch Co. v.

844 F. Supp. 1156, 1161-63

(S.D;

(motion to remand not dispositive); Lerma v. URS Fed.

Support Servs., 2011-WL 2493764 at *3

(E.D. Cal. June 22,

2011)

(same) .
Here,

I assume without deciding that motions to remand are

dispositive.

I consider plaintiff's first amended complaint in

this action to be equivalent to objections to Judge Clarke's prior
ruling.

Any procedural error ln the prior federal action is

harmless because I tiave reviewed de novo the issues raised by
plaintiff.

I agree with Judge Clarke's well-reasoned order that

this probate matter should stay in state court.

Plaintiff has not

presented any arguments that would justify revisiting the
reasoning behind Judge Clarke's decision.

III.

Additional Defendants Named in Plaintiff's Amended Complaint
In his amended complaint, plaintiff names the Honorable

Lorenzo A. Mejia,

the judge in Jackson County Circuit Court

presiding over the probate action.

Plaintiff also names a state

administrator allegedly responsible for training judges.
Because I conclude that the probate action should be heard in
state court,

I dismiss plaintiff's new claims without prejudice

for lack of subject matter jurisdiction.

4 - ORDER

The state court is

competent to hear plaintiff's objections to the probate
proceeding.
III.

Motion for Temporary Restraining Order

Plaintiff's motion for a temporary restraining order must be
denied.

Plaintiff has not shown any likelihood of success.
CONCLUSION

This action is remanded to state court.
for a temporary restraining order (#8)

is denied.

IT IS SO ORDERED.

DATED this

/(

day of December, 2013.

OWEN M. PANNER
U.S. DISTRICT JUDGE

5 - ORDER

Plaintiff's motion