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RECOVERY PARTNERS II v. WARNE

United States District Court, S.D. California


October 17, 2005.

RECOVERY PARTNERS II, LLC, Plaintiff,
v.
HARRY E. WARNE, Defendant.

The opinion of the court was delivered by: JEFFREY MILLER, District Judge

ORDER REMANDING ACTION

On or about April 2, 2004 Plaintiff filed a Notice of Removal seeking to remove this action from the Superior Court of California for the County of San Diego. The Notice of Removal does not contain "a copy of all process, pleadings, and orders served upon such defendant or defendants" in the action as required by 28 U.S.C. § 1446(a). Moreover, there is no indication when the action was originally commenced in state court or whether the action was timely removed.

Defendant, as the party who invokes federal removal jurisdiction, has the burden of demonstrating the existence of federal jurisdictional. See Gaus v. Miles, Inc. 980 F.2d 564, 566 (9th Cir. 1992); B., Inc. v. Miller Brewing Co., 663 F.2d 545 (5th Cir. 1981). Any doubts regarding removal jurisdiction are construed against defendants and in favor of remanding the case to state court. See Gaus, 980 F.2d at 566. Here, the court is unable to determine whether the complaint raises any federal question within the meaning of 28 U.S.C. § 1331 because Defendant did not attach a copy of the complaint with the Notice of Removal nor did he provide a short and plain statement showing that federal jurisdiction is appropriate under the circumstances. Accordingly, the court summarily remands the action to state court pursuant to 28 U.S.C. 1446(a)(4).

  In sum, the action is remanded to state court and the Clerk of Court is instructed to close the file.

  IT IS SO ORDERED.

20051017

© 1992-2005 VersusLaw Inc.



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