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Michael E. Fleming v. Jeffrey Catlin and Does 1-10

February 1, 2012

MICHAEL E. FLEMING, PLAINTIFF,
v.
JEFFREY CATLIN AND DOES 1-10, DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER and FINDINGS AND RECOMMENDATIONS

Presently before the court is plaintiff Michael E. Fleming's ("plaintiff") motion to remand this action to the superior court of California for the County of Yuba ("Superior Court"). (Mot. to Remand, Dkt. No. 3.) Defendant Jeffrey Catlin ("defendant") is proceeding without counsel in this action.*fn1

Having reviewed the briefs and record in this case, the undersigned recommends that plaintiff's motion to remand be granted and that this case be remanded to the Superior Court on the grounds that this court lacks subject matter jurisdiction over plaintiff's single claim for unlawful detainer. The undersigned also recommends that defendant be ordered to pay plaintiff's attorneys' fees "incurred as a result of the removal" pursuant to 28 U.S.C. § 1447(c).

I. PROCEDURAL BACKGROUND

This matter came on for hearing before the undersigned on January 12, 2012.

(Dkt. No. 4.) Attorney Brant Bordsen attended the hearing telephonically on behalf of the plaintiff. Although defendant had not filed a written opposition to the pending motion, defendant appeared on his own behalf at the hearing.

During the hearing, defendant represented that he had only recently learned that plaintiff's motion was pending. Defendant also informed the court that he had been in communication with southern California attorneys regarding representing him in this action, and that they advised him to seek a two week continuance of the January 12, 2012 hearing so that he could obtain counsel in the Sacramento region.

In an order entered on January 17, 2012, the undersigned granted defendant's request for a continuance of the hearing. (Order, Jan. 17, 2012, Dkt. No. 5.) However, the undersigned ordered defendant to file a declaration to specifically explain defendant's failure to timely oppose the motion. (Id.) The undersigned's order also informed defendant that:

Eastern District Local Rule 110 provides: "Failure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court."*fn2 Moreover, Eastern District Local Rule 183(a) provides, in relevant part:

Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law. All obligations placed on "counsel" by these Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for dismissal . . . or any other sanction appropriate under these Rules.

(Order, Dkt. No. 5 at 2-3 (footnote in original).)

The undersigned's order further provided that, "[i]f defendant fails to timely file the above-described declaration under penalty of perjury and/or files a declaration omitting any of the information required by this order, the undersigned will resolve the pending motion based upon the papers on file with the court as of the date of this order. In the event that defendant fails to timely file the above-described declaration, the undersigned will decide plaintiff's pending motion based upon the papers on file with the court as of the date of this order, and will carefully consider plaintiff's potential entitlement to the attorney's fees requested in plaintiff's moving papers." (Id. at 3-4.)

Finally, the undersigned's order provided that, "[o]n or before January 26, 2012, defendant (or an attorney acting on his behalf) shall file a written opposition to plaintiff's pending motion. If defendant fails to timely such written opposition, or files an opposition that contains frivolous arguments in opposition to plaintiff's motion to remand, the undersigned will resolve the pending motion based upon the papers on file with the court as of the date of this order. The undersigned will carefully consider plaintiff's potential entitlement to the attorney's fees requested in plaintiff's moving papers." (Id. at 4.)

On January 17, 2012, defendant filed a declaration partially explaining defendant's failure to timely file a written opposition.*fn3 (Declaration of Jeffrey Catlin ("Catlin Decl."), Dkt. No. 6.)
On January 26, 2012, defendant filed a one-page document styled as an "Opposition" to plaintiff's pending motion to remand.*fn4 (Oppo., Dkt. No. 7.) As the undersigned has previously ordered, if defendant "files an opposition that contains frivolous arguments in opposition to plaintiff's motion to remand," which certainly includes an opposition that contains no substantive argument whatsoever, the undersigned ...

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