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Ing Bank, Fsb v. Marshall-Edwards Mikels


March 23, 2012



This action was removed to this court from the Siskiyou County Superior Court by the defendants, proceeding in propria persona. The matter was referred to a United States Magistrate Judge as provided by Eastern District of California local rules.

On December 2, 2011, the magistrate judge filed findings and recommendations, which were served on the parties and which contained notice that the parties may file objections within a specified time. Defendants have filed timely objections to the findings and recommendations. (ECF 18.)

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. In their objections, defendants request a hearing before a district judge as they have declined the jurisdiction of the magistrate judge. This request is denied. Local Rule 302(c)(21) provides that "[i]n Sacramento, all actions in which all the plaintiffs or defendants are proceeding in propria persona" are handled by the magistrate judge assigned to the case. The court notes that in their declaration, defendants contend they are not proceeding in propria persona, but that defendant Marshall Mikels appeared as "A Private Living Sovereign Man by Special Appearance Rogatory as the Authorized Representative for Defendant(s)," which makes him "an attorney in fact." (Mikels Decl. at 5, ECF 16.) "In propria persona" in Latin means "in one's own person" and is synonymous with "pro se" which means "[f]or oneself; on one's own behalf; without a lawyer." BLACK'S LAW DICTIONARY (9th ed. 2009). Defendant Marshall Mikels is not an attorney;*fn1 defendants are proceeding without a lawyer. Therefore, defendants are proceeding in propria persona. Defendants also maintain that the hearing on this motion should have been rescheduled as they were traveling and that they should have been allotted more time to file an opposition to the motion. (Mikels Decl. at 6.) It is well established that the court may reasonably control its docket. Moreover, defendants were not prejudiced as they had ample time to submit an opposition: plaintiff filed its motion on September 21, 2011, the hearing took place on December 1, 2011, and defendants were traveling from November 10, 2011 to November 24, 2011. Defendants' other contentions go to the merits of plaintiff's complaint and are not appropriately considered here.

The Ninth Circuit "strictly construe[s] the removal statute against removal jurisdiction." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis, 863, F.2d 662, 663 (9th Cir. 1988); Takeda v. Northwestern Nat'l Life Ins. Co., 765 F.2d 815, 818 (9th Cir. 1985)). There is a "strong presumption" against removal jurisdiction, which "means that the defendant always has the burden of establishing that removal is proper." Gaus, 980 F.2d at 566. "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). As set out in the findings and recommendations, defendants have not established that removal was proper. Specifically, although defendants contend that the amount in controversy exceeds $75,000 because the property is valued at $270,000 (Opp'n at 11, ECF 18), plaintiff's complaint states a claim for unlawful detainer and seeks less than $10,000 in damages (Mot. at 2, ECF 3-1). In determining the amount in controversy for purposes of removal jurisdiction, the court looks to the amount stated in the complaint, not at the value of possible counterclaims. See Dir. RLA v. Cape Cod Biolab Corp., No. C-01-3675 PJH, 2001 U.S. Dist. LEXIS 20294, at *7-8 (N.D. Cal. Nov. 30, 2001).

Having carefully reviewed the file, the court finds the findings and recommendations to be supported by the record and by the proper analysis. Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed December 2, 2011, are adopted in full;

2. Plaintiff's motion to remand (ECF 3) is granted;

3. This matter is remanded to the Superior Court of California, County of Siskiyou; and

4. This case is closed.

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