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Op Development, Inc v. Michael Pascal

August 22, 2011

OP DEVELOPMENT, INC., PLAINTIFF,
v.
MICHAEL PASCAL, REBECCA PASCAL, DEFENDANTS.



The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER REGARDING NOTICE OF REMOVAL BY DEFENDANT MICHAEL PASCAL (Document 1)

ORDER DENYING APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES AS MOOT (Document 2)

On August 16, 2011, Defendant*fn1 Michael Pascal filed a Notice of Removal with this Court, seeking to remove an action from the Merced County Superior Court. (Doc. 1.)

Pursuant to Title 28 of the United States Code section 1441(a), a defendant may remove an action to federal court if the district court has original jurisdiction. 28 U.S.C. § 1441(a); Hunter v. Phillip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (quoting Ansley v. Ameriquest Mortg. Co., 340 F.3d 858, 861 (9th Cir. 2003)). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. 28 U.S.C. § 1447(c). Generally, a defendant seeking to remove an action to federal court must file a notice of removal within thirty days of receiving a copy of the initial pleading. 28 U.S.C. § 1446(b). The defendant seeking removal of an action to federal court has the burden of establishing federal jurisdiction in the case. California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004).

Timeliness

Title 28 of the United States Code section 1446 provides, in pertinent part:

(a) A defendant or defendants desiring to remove any civil action . . . from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

(b) The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed with the court and is not required to be served on the defendant, whichever period is shorter.

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable . ...

Initially, the Court notes that Defendant's removal notice failed to provide "a copy of all process, pleadings and orders served" in the state court action as required. See 28 U.S.C. § 1446(a). Defendant's removal notice references these documents as Exhibits A through C, however, the documents were not actually appended to the notice itself or otherwise filed with this Court. Defendant's notice does indicate that Plaintiff's "unlawful detainer complaint" was filed on July 7, 2011, in Merced County Superior Court, case number CVM009244. (Doc. 1 at 1-2.) However, while Defendant also indicated an appearance was entered, he has not referenced any date of service of process of the summons and complaint. (Doc. 1 at 1-2.)

While Defendant's pleading does state that the notice is "timely because it is not barred by the provisions of 28 U.S.C. § 1446(b)," because Defendant did not provide a date upon which he received service of process, this Court cannot make a determination regarding timeliness.

Nevertheless, although timeliness is unclear, the Court will turn to address the issue of jurisdiction.

Jurisdiction

Defendant is attempting remove an unlawful detainer action based on federal question subject matter jurisdiction. (Doc. 1 at 2.) However, Defendant cannot establish jurisdiction that is proper. Federal courts are courts of limited jurisdiction and lack inherent or general subject matter jurisdiction. Federal courts can adjudicate only those cases authorized by the United States Constitution and Congress. Generally, those cases involve diversity of citizenship or a federal question, or cases in which the United States is a party. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 114 S.Ct. 1673, 1677 (1994); Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003, 2008 (1989). Federal courts are presumptively without jurisdiction over civil actions. Kokkonen, 511 U.S. at 377. Lack of subject matter jurisdiction is never waived and may be raised by the Court sua sponte. Attorneys Trust v. Videotape Computer Products, Inc., 93 ...


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