The opinion of the court was delivered by: The Honorable Gary Allen Feess
Renee Fisher None N/A Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
Proceedings: (In Chambers)
The controversy here arises from the eviction of pro se litigant Paul F. Radke and several other social service organizations from property formerly owned by the Herd Community Development Group. The property was sold in a foreclosure sale and Herd's creditors filed an unlawful detainer action against Radke and the other occupants in Los Angeles Superior Court. On January 21, 2009, the Superior Court issued a writ of possession of real property in favor of the creditors. Radke and the other occupants were ordered to vacate the subject property by February 2, 2009. One of the other occupants filed an ex parte application in Superior Court to stay the eviction, which was denied on February 10, 2009. Subsequently, Radke unsuccessfully applied to this Court for a temporary restraining order to prevent the eviction.*fn1
On April 27, 2009, pro se litigant Paul F. Radke filed a notice of removal, purporting to remove three state court cases related to the eviction, pursuant to 28 U.S.C. §§ 1331, 1441(b), based on alleged violations of an automatic stay in a bankruptcy proceeding. The bankruptcy proceeding that gives rise to the stay remains a mystery to the Court because it is not specified, and the only complaint attached to the notice of removal, JJH 26 Palmdale v. Herd, Case No. BC400604, is the unlawful detainer action filed on October 24, 2008, over six months before Radke filed this notice of removal. The other two cases Radke attempts to remove are Khalil v., Superior Court Case No. BC 382991, and Frederick Douglass v. JJH 26 Palmdale, LLC, Superior Court Case No. BC 394847. These cases were also filed several months before Radke's recent notice of removal and are untimely. The plaintiffs in JJH 26 Palmdale v. Herd -- namely, JJH Palmdale, LLC, Reuben Yeroushalmi, and Daniel Khalil -- filed the pending motion for remand.
The burden of establishing federal jurisdiction is upon the party seeking removal. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). Radke has failed to meet his burden. A defendant must file a notice of removal within 30 days after receipt of the first pleading in the state action that sets for a removable claim. 28 U.S.C. § 1446(b). Generally, this means the time begins to run from formal service of the summons and complaint on the defendant. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354 (1999). Radke has filed his notice of removal well over six months too late, and in one case, almost a year too late.
The notice of removal is not only untimely; it has no basis in law. One of the cases Radke purports to remove, Khalil v. Herd, was remanded twice on May 7, 2008 and January 29, 2009 after two attempted removals to the Bankruptcy Court (Mot., Exs. B, D), and was voluntarily dismissed on April 13, 2009 (Mot., Ex. F). Another case, JJH Palmdale v. Herd, the unlawful detainer action filed in October 2008, was remanded by the Bankruptcy Court on January 29, 2009 after an attempted removal (Mot., Ex. D), and has already been adjudicated by the Los Angeles Superior Court.*fn2 The third, Frederick Douglass v. JJH 26 Palmdale LLC, was filed in July 2008 and, in that case, Radke is a plaintiff.
It is clear Radke's attempted removal is calculated only to frustrate and delay the plaintiff owners of commercial property in their lengthy eviction proceedings; remand is appropriate. Accordingly, the Court GRANTS the motion to remand. The hearing scheduled for Monday, June 15, 2009 is hereby VACATED.