IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 5, 2012
THE BANK OF NEW YORK MELLON, PLAINTIFF,
MARIA FLORES AND DOES 1-10, INCLUSIVE, DEFENDANT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
On June 4, 2012, defendant filed a Notice of Removal, which purports to remove plaintiff's unlawful detainer action, filed as Sacramento Superior Court case number 11UD06410, to this federal court.*fn1 Defendant also filed an application to proceed in forma pauperis. However, defendant previously removed the identical unlawful detainer action to this court, which is proceeding as Bank of New York Mellon v. Flores, 2:12-cv-00435 KJM KJN PS (E.D. Cal.) ("Flores I").*fn2 On June 1, 2012, the undersigned filed findings and recommendations in Flores I recommending that the Flores I matter be remanded to the Sacramento Superior Court for lack of federal subject matter jurisdiction, and that the Flores I matter be closed. The findings and recommendations in Flores I are pending.
In regards to defendant's application to proceed in forma pauperis, the undersigned concludes that the application and declaration make the showing required by 28 U.S.C. §§ 1915(a)(1) and 1915(2). Accordingly, the undersigned grants defendant's request to proceed in forma pauperis.
However, the undersigned recommends that this case be administratively closed. First, because defendant had already removed the Superior Court case to this court in Flores I, there was no case in the Superior Court that defendant could actually remove to federal court. Second, defendant's purported removal was frivolous because this matter is completely duplicative of Flores I. See Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (holding that a complaint that "merely repeats pending or previously litigated claims" may be dismissed as frivolous under the authority of then-numbered 28 U.S.C. § 1915(d)); see also Adams v. Cal. Dep't of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007) ("Plaintiffs generally have no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant." (citation and quotation marks omitted), cert. denied 552 U.S. 1076 (2007); accord Kahre v. Damm, 342 Fed. Appx. 267, 268-69 (9th Cir. 2009) (affirming dismissal of later-filed case where that case contained claims that were almost entirely duplicative of claims asserted in an earlier-filed case). Although the undersigned would ordinarily recommend that this case be dismissed, a dismissal would not be appropriate in the context of defendant's improper removal. Neither would a recommendation of remand be appropriate in this matter because that same recommendation is already pending in Flores I.
Accordingly, IT IS HEREBY ORDERED that defendant's application to proceed in forma pauperis (Dkt. No. 2) is granted.
It is FURTHER RECOMMENDED that the Clerk of Court be directed to administratively close this case.
IT IS SO ORDERED and RECOMMENDED.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Id.; see also E. Dist. Local Rule 304(b). Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed with the court and served on all parties within fourteen days after service of the objections. E. Dist. Local Rule 304(d). Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).