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FOOTHILLS v. MOUNTAIN WEST HOMES

United States District Court, N.D. California


February 25, 2004.

SAN RAMON FOOTHILLS, Plaintiff,
v.
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.

BACKGROUND

  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 Page 2 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.

  DISCUSSION

  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.

  CONCLUSION

  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 VACATED.

  IT IS SO ORDERED.

20040225

© 1992-2004 VersusLaw Inc.



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