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Mario H. Cabrera and Rosa Cabrera v. Martinez

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION


January 27, 2012

MARIO H. CABRERA AND ROSA CABRERA, PLAINTIFFS,
v.
MARTINEZ & ASSOCIATES, LLC, DBA MARIO'S BODY SHOP SUPPLIES; JOSE MANRIQUEZ, DBA MARIO'S BODY SHOP SUPPLIES; AND DOES 1 THROUGH 25, INCLUSIVE, DEFENDANTS.

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

Lenden F. Webb (SBN 236377) Amy R. Lovegren-Tipton (SBN 258697) Manuel E. Ignacio (SBN 279191) WEBB & BORDSON, APC 466 W. Fallbrook Ave. Suite 102 Fresno, CA 93711 Telephone: (559) 431-4888 Facsimile: (559) 821-4500 Email: MIgnacio@WBLawGroup.com Attorney for Plaintiffs, MARIO H. CABRERA, an individual, and ROSA CABRERA, an individual

STIPULATION TO REMAND CASE BACK TO KERN COUNTY SUPERIOR COURT; ORDER THEREON

Plaintiffs MARIO H. CABRERA, an Individual; and ROSA CABRERA, an Individual ("CABRERA"); Defendant MARTINEZ & ASSOCIATES, LLC, dba MARIO'S BODY SHOP SUPPLIES ("MARTINEZ") and Defendant JOSE MANRIQUEZ, dba MARIO'S BODY SHOP SUPPLIES ("MANRIQUEZ") (collectively "Parties") by and through their respective counsel of record, hereby stipulate and agree as follows:

STIPULATION

1. On July 20, 2011, Plaintiffs commenced an action in the Superior Court of California, County of Kern entitled Mario H. Cabrera and Rose Cabrera v. Martinez & Associates, LLC dba Mario's Body Shop Supplies, Jose Manriquez, dba Mario's Body Shop Supplies, et al bearing Kern County Case No. S-1500-CL-261230 (hereinafter "the Action").

2. On or about October 26, 2011, Defendant MANRIQUEZ filed a Notice of Removal of the Action to this Court pursuant to 28 U.S.C. §§1331 and 1446.

3. Defendant MARTINEZ has not consented to Removal in this case and therefore the required unanimity of Defendants for Removal is absent:

"While the failure of one defendant to consent renders the removal defective, each defendant need not necessarily sign the notice of removal. (Citation omitted.) There must, however, be some timely filed written indication from each served defendant, or some person with authority to act on the defendant's behalf, indicating that the defendant has actually consented to the removal." (Getty Oil Corporation, Succeeded by and a Division of Texaco, Inc. v. Insurance Company of North America 841 F.2d 1254 (Fifth Circuit 1988) (Emphasis added.)

4. In addition, after discussion among the Parties, it was discovered that there is no triable cause of action to be heard before the Eastern District Court and that the matter should be remanded to the Kern County Superior Court. The parties agree that this Court lacks subject matter jurisdiction because the facts of this case do not satisfy the jurisdictional requirements of the Protecting Tenants at Foreclosure Act (12 U.S.C. §5220).

5. The parties hereto stipulate that the Action should be remanded to Kern County Superior Court.

6. The parties further stipulate that each party shall bear its own attorneys' fees and costs with respect to the removal and subsequent remand of the Action pursuant to this Stipulation and Order.

ORDER

On January 26, 2012 the Parties to the above-referenced action filed a Stipulation to Remand Removed Action. The Court having reviewed that Stipulation and good cause appearing, Orders as follows:

1. The Parties' Stipulation is approved;

2. Eastern District of California, Case No. 11-cv-1782-LJO-JLT styled MARIO H. CABRERA AND ROSA CABRERA v. MARTINEZ & ASSOCIATES, LLC., dba MARIO'S BODY SHOP SUPPLIES; JOSE MANRIQUEZ, dba MARIO'S BODY SHOP SUPPLIES; and DOES 1 through 25, inclusive is hereby remanded to Kern County Superior Court.

The clerk is directed to take necessary action to remand this action to Kern County Superior Court.

IT IS SO ORDERED.

20120127

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