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Portillo v. Moreno

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 3, 2009

PORTILLO, PARENTS OF DECEDENT RODOLFO ESPINOZA AND GAUDALUPE MARIA CELESTE ESPINOZA-PORTILLO PLAINTIFFS,
v.
RAUDEL MORENO AND MARICELA MORENO AND DOES 1 TO 100 INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER RE DISMISSAL/REMAND AND RELATED CROSS-ACTIONS

In an order dated September 30, 2009, the United States/Postal Service was ordered to show cause, in writing, by October 13, 2009, why the indemnity action should not be dismissed for lack of jurisdiction and the remainder of the case remanded. (See Doc. 22 at 9.) Any opposition was due by October 20, 2009.

In its written response to the order to show cause, filed October 13, 2009, the United States/Postal Service acknowledges, as stated in the September 30, 2009, order, that the San Joaquin Superior Court did not have subject matter jurisdiction over the cross-complaint for indemnity and, under the derivative jurisdiction doctrine, this court did not acquire jurisdiction over the cross-complaint for indemnity upon removal. The United States/Postal Service "does not oppose dismissal of the cross- complaint for lack of subject-matter jurisdiction and remand of the underlying action to state court." (Doc. 23 at 2.) No opposition was filed to United States/Postal Service's response to the order to show cause.

Given the response to the order to show cause, and for the reasons stated in the September 30, 2009, order, the cross-complaint for indemnity is dismissed without prejudice for lack of subject matter jurisdiction. The remainder of the case is remanded to the San Joaquin Superior Court. See Shnetnam v. 200 White Plains Road, LLC, No. 06 Civ. 3819 (LMM), 2006 WL 3016312, at *2 (S.D.N.Y. Oct. 20, 2006) (dismissing claims against the United States/Postal Service which, because of the derivative jurisdiction doctrine, the court did not acquire jurisdiction over upon removal and remanding the remainder of the case).

Within five (5) days of electronic service of this order, the United States/Postal Service shall submit a proposed order dismissing the cross-complaint for indemnity and remanding the remainder of the case to the San Joaquin Superior Court.

The Scheduling Conference set for December 4, 2009, is VACATED.

IT IS SO ORDERED.

20091103

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