United States District Court, N.D. California
February 25, 2004.
SAN RAMON FOOTHILLS, Plaintiff,
MOUNTAIN WEST HOMES, Defendant
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER GRANTING PLAINTIFF'S
MOTION TO REMAND AND VACATING HEARING
Plaintiff San Ramon Foothills moves to remand this action to the
Superior Court of California, County of Contra Costa. Defendant filed no
opposition. Having carefully considered the papers submitted, the Court
hereby GRANTS the motion to remand and REMANDS this action to the
Superior Court for Contra Costa County. The hearing set for February 27,
2004 is VACATED.
On June 10, 2003, plaintiff filed a construction defect complaint
against defendants The Wellington Group, the Estate of The Wellington
Group, and Todd Neilson, among others, in California Superior Court,
County of Contra Costa. Each cause of action alleged in the complaint was
based on state law. At the time the complaint was filed, defendant The
Wellington Group had a bankruptcy proceeding pending before the
Bankruptcy Court. Def. R. Todd Neilson's Notice of Removal at 2. On
August 7,2003, defendant R. Todd Neilson, trustee of the Chapter 7
bankruptcy estate of The Wellington Group, Inc., removed the action to
federal court pursuant to 28 U.S.C. § 1334(b) and 1452(a), which
gives a district court subject matter jurisdiction of cases arising under
or relating to Title 11 (bankruptcy proceedings). Def. R. Todd Neilson's
Notice of Removal at 1.
On October 6, 2003, plaintiff dismissed The Wellington Group from this
action upon order of the
Bankruptcy Court. Decl. of J. Stander at 2. On January 21,2004,
plaintiff filed a motion to remand this case to the California Superior
Court, County of Contra Costa, arguing that since The Wellington Group
has been dismissed, this Court no longer has jurisdiction pursuant to
28 U.S.C. § 1447(c). No defendant has filed an opposition to plaintiff's
motion for remand.
28 U.S.C. § 1334(b) states "the district courts shall have original
but not exclusive jurisdiction of all civil proceedings arising under
title 11, or arising in or related to cases under title 11."
28 U.S.C. § 1452(b) permits a district court to remand such cases on "any
equitable ground." Thus, a court has discretion to remand a case arising
under or relating to Title 11 based on notions of "general fairness."
Schwarzer, Federal Civil Procedure Before Trial § 2:846
(The Rutter Group 2003). In reaching its remand decision, a court may
consider such factors as respect for state-court decision-making and the
predominance of state court issues. Id. at § 2:846.19.
The Wellington Group has been dismissed from the current construction
defect action. As a result, this proceeding no longer arises under or
relates to a case under Title 11. Furthermore, state claims not only
predominate the case, they are the only issues remaining for decision.
Id. Having no basis for federal subject matter jurisdiction,
this Court hereby REMANDS this case to the California Superior Court,
County of Contra Costa.
For the foregoing reasons, the Court GRANTS plaintiff's motion and
REMANDS this action to the California Superior Court, County of Contra
Costa, [docket # 27] The hearing scheduled for February 27, 2004 is
IT IS SO ORDERED.
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