United States District Court, N.D. California
ORDER GRANTING DEFENDANT'S MOTION TO PROCEED IN FORMA PAUPERIS AND REMANDING ACTION TO STATE COURT Re: Dkt. Nos. 2, 4
YVONNE GONZALEZ ROGERS, District Judge.
Defendant Floro Lorenzo Cruz, Jr. in a pro se capacity removed this case from the Superior Court for the County of San Mateo where it was pending as an unlawful detainer action against defendants. Defendant filed a notice of removal on June 24, 2015 (Notice of Removal, Dkt. No. 1 ("NOR")), claiming to invoke this Court's federal question jurisdiction under 28 U.S.C. section 1443(1). Defendant concurrently moved to proceed in forma pauperis. (Dkt. No. 2.) On July 9, 2015, plaintiff filed a motion to remand the case to state court. (Dkt. No. 4 ("Mtn.").) Defendant did not respond in opposition and plaintiff likewise did not file any reply.
Presently before the Court are defendant's motion to proceed in forma pauperis and plaintiff's motion to remand the case to superior court. The Court having reviewed the papers,  and for or the reasons set forth below, GRANTS defendant's application to proceed in forma pauperis, GRANTS plaintiff's motion to remand, and DENIES plaintiff's request for attorney fees and costs.
I. Defendant's Motion to Proceed In Forma Pauperis
Defendant's application to proceed in forma pauperis adequately alleges his poverty. Defendant is self-employed, his monthly expenses appear to exceed his monthly income, and he has one dependent. He does not own a home and has significant outstanding debts. Therefore, defendant qualifies for in forma pauperis status, and his application is GRANTED.
II. Plaintiff's Motion to Remand
Plaintiff argues that remand is appropriate on two separate and independent bases, namely that: (a) the notice of removal was untimely; and (b) plaintiff has not established any basis for subject matter jurisdiction. The Court agrees that remand is warranted on both accounts and addresses each in turn.
a. Timeliness of Removal
The removal statute, 28 U.S.C. section 1446, governs timeliness of removal and provides in pertinent part:
The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
28 U.S.C. § 1446(b). Failure to file a timely notice of removal waives a defendant's right to remove. Cantrell v. Great Republic Ins. Co., 873 F.2d 1249, 1256 (9th Cir. 1989). Thus, if defendant did not file the notice of removal within 30 days of service of summons, the notice of removal is untimely and the action should be remanded.
Plaintiff argues, and the record shows, that defendant filed the notice of removal more than 30 days after he was served with summons. Specifically, removing defendant was served through substituted service on his co-tenant and co-defendant on May 20, 2015. ( See Proof of Service of Summons, Exhibit D to Declaration of Jonathan Herschel, Dkt. No. 4-2.) To be timely under 28 U.S.C. section 1446(b), therefore, defendant's notice of removal would have to have been filed in federal court no later than June 19, 2015. However, defendant did not file the notice of removal until five days later on June 24, 2015. Because defendant did not timely file the notice of removal, he waived his right to remove, and the action is due to be remanded on this basis alone.
b. Subject Matter Jurisdiction
Remand is also appropriate because the Court lacks subject matter jurisdiction over this action. A defendant in state court may remove an action to federal court so long as the action could have originally asserted subject matter jurisdiction. 28 U.S.C. § 1441(a). The removing defendant has the burden of proving the basis for the federal court's jurisdiction. Nishimoto v. Federaman-Bachrach & Assocs., 903 F.2d 709, 712 (9th Cir. 1990). Removal statutes are strictly construed against removal. Shamrock Oil ...