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US Bank National Association, Trustee v. Belle

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


May 28, 2008

US BANK NATIONAL ASSOCIATION, TRUSTEE, PLAINTIFF,
v.
RODNEY L. BELLE; MARY BOCHUM, DEFENDANTS.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER STRIKING NOTICE OF APPEAL AND REQUEST TO STAY JUDGMENT

On May 16, 2008, putative defendant Mary Bochum ("Bochum"), appearing pro se, filed a notice of removal from the State of California, Superior Court for the County of San Diego. The state court complaint alleges a claim against Rodney L. Belle ("Belle") only*fn1 for unlawful detainer. After reviewing Bochum's notice of removal, the Court remanded the action to the state court concluding that this Court lacked subject matter jurisdiction over the case and for procedural deficiencies. See Order filed May 21, 2008 [doc. #3]. On May 23, 2008, Mary Bochum filed a "Notice of Appeal to the Appellate Court of Appeal, Stay of Judgment." [doc. #4].

Remand orders are not appealable.*fn2 The statute addressing remand after removal provides that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise ...." 28 U.S.C. § 1447(d). The statute also provides that after a federal court issues an order to remand the case back to state court, "[t]he State court may thereupon proceed with such case." Id. § 1447(c). The cumulative effect of these two rules is clear: a party may not appeal a remand order in federal court because once the remand order issues, the case may proceed immediately in state court. This rule is also reflected in case law: "Congress has placed broad restrictions on the power of federal appellate courts to review district court orders remanding removed cases to state court." Things Remembered Inc. v. Petrarca, 516 U.S. 124, 127 (1995). In accordance with these restrictions, the Supreme Court has held that an appeal is available only when a district court bases its remand on grounds other than those specified in 28 U.S.C. § 1447(c). "As long as a district court's remand is based on a timely raised defect in removal procedure or on lack of subject-matter jurisdiction -- the grounds for remand recognized by § 1447(c) -- a court of appeals lacks jurisdiction to entertain an appeal of the remand order under § 1447(d)." Id. at 127-28.

This Court remanded the present case for lack of subject matter jurisdiction and procedural deficiencies which are "precisely the type of removal defect contemplated by § 1447(c)," and no appeal of the remand order is available. Id. at 128.

Based on the foregoing, Bochum's notice of appeal and request for stay of judgment is STRICKEN from the record and the case shall remain closed.

IT IS SO ORDERED.


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