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Beavers v. New Penn Financial, LLC

United States District Court, E.D. California

July 19, 2017

KENNETH BEAVERS, Plaintiff,
v.
NEW PENN FINANCIAL, LLC, et al., Defendants.

          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

         The 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.[1]

         In 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.

         I. Motion to Remand

         A. Legal Standards

         Pursuant 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.

         A party 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.

         The 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).

         B. Forgery of the acknowledgement

         The 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.

         In 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.

         Finally, 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 ...


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