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The People of the State of California Ex Rel v. Steve Pleich; Occupy Santa Cruz; and Does 1-100

January 20, 2012

THE PEOPLE OF THE STATE OF CALIFORNIA EX REL
JOHN G. BARISONE, CITY ATTORNEY, CITY OF SANTA CRUZ, PLAINTIFFS,
v.
STEVE PLEICH; OCCUPY SANTA CRUZ; AND DOES 1-100,
DEFENDANTS.



The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

E-filed January 20, 2012

NOT FOR CITATION

ORDER THAT CASE BE REASSIGNED TO A DISTRICT JUDGE REPORT AND RECOMMENDATION [Re: Docket No. 5]

Plaintiffs John Barisone, City Attorney of Santa Cruz, and the City of Santa Cruz brought this action on behalf of the people of California alleging that defendants have created a public 20 nuisance in violation of state and local law. See Dkt. No. 1 ("Notice of Removal"), Exh. A 21 ("Complaint"). Plaintiffs claim that the defendants, the group Occupy Santa Cruz ("OSC"), Steve 22 Pleich, the group's representative, and one hundred unnamed members of Occupy Santa Cruz have 23 camped continuously in an area called the San Lorenzo Park Benchlands since October 6, 2011. Id. 24 ¶¶ 4, 7. Plaintiffs allege that despite having provided OSC with a permit that required the group to 25 obey park rules, clean the camp area, eliminate alcohol, cigarette, and illicit drug use in the camp, 26 and provide portable toilets, among other things, OSC has refused to abide by the terms of the 27 permit and has created "serious health and safety hazards" for the community. Id. ¶¶ 9-17. 28

Defendants removed this action from Santa Cruz Superior Court, and plaintiffs timely moved to remand, claiming both procedural deficiencies in the removal notice and a lack of subject 3 matter jurisdiction. See Dkt. No. 5. Defendants did not timely oppose the motion. This court held a 4 hearing on the motion on January 3, 2012, at which time it invited defendants to submit an 5 opposition presenting any authority that would support subject matter jurisdiction over the action. 6

Defendants OSC and Steve Pleich have each filed oppositions of sorts, and the plaintiff has replied. 7

Because not all parties have consented to the undersigned's jurisdiction, this court the Clerk of the Court to reassign this case to a district judge. Based on the moving papers, 10 arguments presented at hearing, and applicable authority, this court RECOMMENDS that plaintiff's

LEGAL STANDARD

Removal to federal court is proper where the federal court would have had original subject matter jurisdiction over the complaint. 28 U.S.C. § 1441. The removal statute is strictly construed 15 against removal and places the burden on the defendant to demonstrate that removal was proper. 16

Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus v. Miles, 17 Inc., 980 F.2d 564, 566 (9th Cir. 1992)). "If at any time before final judgment it appears that the 18 district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). 19

However, "the district courts have no authority to remand a case sua sponte for procedural defects." 20

Kelton Arms Condo. Owners Ass'n v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. Cal. 21 2003).*fn1

Federal courts have original jurisdiction over civil actions "arising under the Constitution, 23 laws, or treaties of the United States." 28 U.S.C. § 1331. A claim "arises under" federal law if, 24 based on the "well-pleaded complaint rule," the plaintiff alleges a federal claim for relief. Vaden v. 2 Discovery Bank, 129 S. Ct. 1262, 1271 (2009). Thus, "the plaintiff [is] the master of the claim; he or 3 she may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar Inc. v. Williams, 4

482 U.S. 386, 392 (1987). Defenses and counterclaims asserting a federal question do not satisfy 5 this requirement. ...


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