United States District Court, S.D. California
October 17, 2005.
RECOVERY PARTNERS II, LLC, Plaintiff,
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.
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