United States District Court, E.D. California
ORDER DENYING MOTION TO REMAND THE MATTER (Doc. 10)
ORDER VACATING THE HEARING ON THE MOTION TO REMAND ORDER
DISMISSING THE COMPLAINT WITH LEAVE TO AMEND
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
plaintiff seems to contend that the notice of removal was not
timely because the acknowledgement of service was forged.
(Doc. 10 at 3) However, because an acknowledgement that is
not properly executed would mean that there is not proper
service in this case, the removal would not be untimely but
premature. Moreover, because the Court does not find any
forgery and no evidence of intent to defraud and because the
Court finds the notice of removal to be timely and consistent
with the law, the motion to remand is DENIED.
addition, the complaint and attachments thereto, filed by the
plaintiff in the Kern County Superior Court, is in excess of
1, 200 pages. This clearly violates Federal Rule of Civil
Procedure 8 which requires “a short and plain statement
of the claim.” Therefore, the complaint is DISMISSED
with 21 days leave to file a first amended complaint that
complies with Rule 8.
Motion to Remand
to 28 U.S.C. § 1441(a), a defendant has the right to
remove a matter to federal court where the district court
would have original jurisdiction. Caterpillar, Inc. v.
Williams, 482 U.S. 286, 392 (1987). Specifically,
Except otherwise expressly provided by Act of Congress, any
civil action brought in a State court of which the district
courts of the United States have original jurisdiction, may
be removed by the defendant or defendants, to the district
court of the United States for the district and division
embracing the place where such action is pending.
28 U.S.C. § 1441(a). District courts have
“original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United
States.” Id. at § 1331.
seeking removal must file a notice of removal of a civil
action within thirty days of service of the initial pleading.
28 U.S.C. at § 1446(b). Removal statutes are to be
strictly construed, and any doubts are to be resolved in
favor of state court jurisdiction and remand. See Gaus v.
Miles, 980 F.2d 564, 566 (9th Cir. 1992). The party
seeking removal bears the burden of proving its propriety.
Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir.
1996); Abrego v. Dow Chem. Co., 443 F.3d 676, 683-85
(9th Cir. 2006); see also Calif. ex. rel. Lockyer v.
Dynegy, Inc., 2274 F.3d 831, 838 (“the burden of
establishing federal jurisdiction falls to the party invoking
the statute”). If there is any doubt as to the right of
removal, “federal jurisdiction must be rejected.”
Duncan, 76 F.3d at 1485.
district court has “a duty to establish subject matter
jurisdiction over [a] removed action sua sponte,
whether the parties raised the issue or not.”
United Investors Life Ins. Co. v. Waddell & Reed,
Inc., 360 F.3d 960, 967 (9th Cir. 2004); see also
Kelton Arms Condo. Homeowners Ass'n v. Homestead Ins.
Co., 346 F.3d 1190, 1192-93 (9th Cir. 2003) (noting a
distinction between procedural and jurisdictional defects and
holding that a “district court must remand if
it lacks jurisdiction”). Thus, the Sixth Circuit
explained a court “can, in fact must, dismiss a case
when it determines that it lacks subject matter jurisdiction,
whether or not a party has a filed a motion.” Page
v. City of Southfield, 45 F.3d 128, 133 (6th Cir. 1995).
Forgery of the acknowledgement
Court does not find any evidence of “forgery.”
Counsel report that the signature placed on the
acknowledgement was not Mr. Ascherin's but was that of
his co-counsel, Ms. Jassim. He reports also that Ms. Jassim
signed the document with Mr. Ascherin's permission.
Moreover, Ms. Jassim did not sign Mr. Ascherin's name,
but signed her own name. Even if Ms. Jassim had
signed Mr. Ascherin's name, this does not constitute
forgery. Forgery occurs only if a signature is
placed on the document with the intent to defraud
and knowing the signor has no authority to place the
signature on the document. California Penal Code § 470.
addition, the Court does not find that there was any intent
to defraud anyone. The acknowledgement signed by counsel was
a courtesy to the plaintiff. Indeed, if the plaintiff was
correct, that the Court should determine the acknowledgement
to be ineffective, then the plaintiff would be obligated to
effect service. The acknowledgement accommodated the
plaintiff by not requiring a more complicated and expensive
method of service.
even if the Court found the acknowledgement to be
improper-and it does not-and though this would require remand
at this time, once the plaintiff accomplished service, the
defendant would be entitled to remove the action once again.
The Court is at a loss to appreciate how that serves
anyone's interests or how the defendant's attempts to