Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Anderson Place Associates I,L.P v. Nina Bartholomew

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 6, 2011

ANDERSON PLACE ASSOCIATES I,L.P., PLAINTIFF,
v.
NINA BARTHOLOMEW, DEFENDANT.

FINDINGS AND RECOMMENDATIONS

Defendant Nina Bartholomew, proceeding pro se, removed this unlawful detainer action from state court and applied for leave to proceed in forma pauperis. The matter came before the court on May 6, 2011, for hearing of plaintiff's motion for remand. Shawn K. Bankson, Esq. appeared for plaintiff. Defendant did not file opposition to plaintiff's motion and did not appear at the hearing of the motion.

It is well established that the statutes governing removal jurisdiction must be "strictly construed against removal." Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941)). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). "'The burden of establishing federal jurisdiction falls on the party invoking removal.'" Harris v. Provident Life & Accident

Ins. Co., 26 F.3d 930, 932 (9th Cir. 1994) (quoting Gould v. Mut. Life Ins. Co., 790 F.2d 769, 771 (9th Cir.1986)). Moreover, "the existence of federal jurisdiction depends solely on the plaintiff's claims for relief and not on anticipated defenses to those claims." ARCO Envtl. Remediation, LLC v. Dep't of Health & Envtl. Quality, 213 F.3d 1108, 1113 (9th Cir. 2000). Where it appears, as it does here, that the district court lacks subject matter jurisdiction over a removed case, "the case shall be remanded." 28 U.S.C. § 1447(c).

In conclusory fashion, defendant alleges in her notice of removal that federal question jurisdiction exists because "[t]he complaint involves rights and duties with respect to a federally sponsored and subsidized housing project." (Notice of Removal (Doc. No. 1) at 2.) However, the exhibits attached to the notice of removal establish that the state court action is nothing more than a garden-variety unlawful detainer action, and the state court action is titled as such. Plaintiff's unlawful detainer action, filed against a tenant of real property located in California and based wholly on California law, does not involve any "claim or right arising under the Constitution, treaties or laws of the United States" that would have permitted plaintiff to file this action originally in federal court. 28 U.S.C. § 1441(b).

Defendant has failed to meet her burden of establishing federal jurisdiction, and the action should therefore be remanded.

Accordingly, IT IS HEREBY RECOMMENDED that:

1. Defendant's motion to proceed in forma pauperis (Doc. No. 2) be denied;

2. Plaintiff's motion for remand (Doc. No. 7) be granted; and

3. This action be remanded to the Superior Court of California, County of Yolo. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. A document presenting objections should be titled "Objections to Magistrate Judge's Findings and Recommendations." Any reply to objections shall be filed and served within seven days after service of the objections. The parties are advised that failure to file objections within the specified time may, under certain circumstances, waive any right to appeal the District Court's order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20110506

© 1992-2011 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.