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Jefferson v. Curtis

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 15, 2010

EDWARD JAMES JEFFERSON PLAINTIFF,
v.
OFFICER CURTIS, INDIVIDUALLY DOE ZACK, A STORE MANAGER, AND WAL-MART, INC., DEFENDANTS.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

On May 21, 2009, Plaintiff Edward James Jefferson ("Plaintiff") filed the present action in pro se, alleging deprivations of his civil rights under 42 U.S.C. § 1983. Some seven months later, attorney James Joseph Lynch filed a Notice of Substitution of Counsel purporting to effectuate his substitution of counsel for both Plaintiff and Cliff Hoffman, who previously had no connection whatsoever to this lawsuit.

In filing the substitution, however, Attorney Lynch failed to comply with the terms of Eastern District Local Rule 182(g), which specifies that a substitution request must include a court order. Consequently Mr. Lynch has not yet properly substituted in as Plaintiff's counsel in this case.

On the same day he filed the purported substitution, Attorney Lynch also filed a document entitled "Notice of Removal" in which he purports to remove one, and possibly two, state court actions in which Cliff Hoffman was or is a party. Examination of the documents pertaining to those actions, as attached to the Notice of Removal, reveals no allegations supporting even a colorable claim for federal jurisdiction. Both involve claims sounding solely in state law. Moroever, the Notice of Removal contains no suggestion that jurisdiction may rest on diversity grounds. Instead, Mr. Lynch appears to simply assert that because the state court litigation involving Mr. Hoffman is somehow "related" to the claims asserted by Mr. Jefferson, that alone is enough to invoke federal jurisdiction.

Mr. Lynch is wrong, and his Notice of Approval is improper despite the fact that he has not yet properly substituted in to this matter in the first place and consequently has no standing to offer any argument before the Court at this juncture. An action may not be removed to federal court unless the complaint, on its face, shows that the case "arises under" federal law. See Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 10 (1983). The pleadings in Mr. Hoffman's case contain no such allegations.

For all the above reasons, the purported Notice of Removal (Docket Nos. 9, 10) is consequently STRICKEN as improper. While the Court recognizes that Attorney Lynch also included a request for party joinder within the Notice of Removal, that request must be made separately once Mr. Lynch is properly representing Plaintiff or anyone else in this matter.

IT IS SO ORDERED.

20100115

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