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U.S. Bank National Association v. Rotonda Llopis

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 25, 2012

U.S. BANK NATIONAL ASSOCIATION, PLAINTIFF,
v.
ROTONDA LLOPIS, DEFENDANT.

FINDINGS AND RECOMMENDATIONS

This action, in which defendant is pro se, proceeds before this court pursuant to Eastern District of California Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). On June 11, 2012, defendant Rotonda R. Llopis filed a notice of removal, which purports to remove plaintiff's unlawful detainer action, filed as Solano County Superior Court case number FCM 122581, to this federal court.*fn1 Dckt. No. 1. However, defendant previously removed the identical unlawful detainer action to this court, which is proceeding as U.S. Bank Nat'l Ass'n v. Llopis, 2:12-cv 1289-MCE-EFB PS (E.D. Cal.) ("Llopis I").*fn2 On May 16, 2012, the undersigned issued findings and recommendations in Llopis I recommending that the Llopis I matter be remanded to the Solano County Superior Court for lack of federal subject matter jurisdiction. Llopis I, Dckt. No. 4. The findings and recommendations in Llopis I are pending.

In light of Llopis I, the undersigned recommends that this case be administratively closed. First, because defendant had already removed the Superior Court case to this court in Llopis 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 Llopis 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 Llopis I.

Accordingly, IT IS HEREBY RECOMMENDED that the Clerk of Court be directed to administratively close this case.

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)(l). 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. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. 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, 1157 (9th Cir. 1991).


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