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Moore v. Moore

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 29, 2009

HAL MOORE, PLAINTIFF,
v.
ANITA M. MOORE, DEFENDANT.

The opinion of the court was delivered by: Hayes, Judge

ORDER REMANDING ACTION TO STATE COURT

The matter before the Court is Plaintiff's motion to remand to state court (Doc. # 3). Plaintiff sued Defendant in California State Court on May 11, 2009 for nonpayment of rent (Doc. #3 at 4). Defendant, proceeding pro se, filed an answer on June 5, 2009 (Doc. # 3-2 at 10). Defendant then filed a notice of removal on June 22, 2009, removing the case to federal court (Doc # 1, No. 09cv1287 BEN (NLS)). The case was remanded to state court on July 17, 2009 on the grounds that "[t]he nonsensical Notice of Removal provides no basis for the Court's jurisdiction." Moore v. Moore, No. 09cv1287 BEN (NLS), slip op. at 2 (S.D. Cal. Jul. 17, 2009). The case was set for trial in the state court on August 7, 2009 (Doc. # 3 at 2). Defendant again filed a notice of removal which fails to state any basis for federal jurisdiction on August 4, 2009 before this Court (Doc. # 1).

As the party seeking removal, Defendant bears the burden of establishing federal jurisdiction. See Redwood Theatres v. Festival Enterprises, Inc., 908 F.2d 477, 479 (9th Cir. 1990). The allegations in Plaintiff's complaint arise solely under state law and Defendant does not allege diversity jurisdiction (Doc. # 1). Defendant's sole reference to a federal law allegedly authorizing removal is to 28 U.S.C. § 1446. Section 1446 sets out the procedure for removing a case to federal court, but is not itself a basis for federal jurisdiction. Furthermore, § 1446(b) requires notice of removal be filed within thirty days "after the receipt by the defendant" of a copy of the initial pleading. In addition to failing to state a basis for federal jurisdiction, this removal notice is therefore untimely.

IT IS HEREBY ORDERED that:

(1) Plaintiff's motion to remand (Doc. # 3) is GRANTED.

(2) This case is remanded to state court.

(3) All other pending motions in this case (Docs. # 2, 4) are DENIED as moot.

WILLIAM Q. HAYES United States District Judge

20090929

© 1992-2009 VersusLaw Inc.



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