United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
On
August 9, 2019, defendant Krista Mitchell filed a notice of
removal of this action, Yolo County Superior Court Case No.
PT19-1466, from the Yolo County Superior Court, along with a
motion to proceed in forma pauperis. (ECF Nos. 1 & 2.)
Defendant is proceeding in this action pro se. Accordingly,
the matter was referred to the undersigned in accordance with
Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
The
court is required to screen complaints brought by parties
proceeding in forma pauperis. See 28 U.S.C. §
1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122,
1129 (9th Cir. 2000) (en banc). Here, defendant previously
removed Yolo County Superior Court Case No. PT18-696, to this
court on August 13, 2018. See Emerson v. Mitchell,
No. 2:18-cv-2200 TLN DB PS. In that action, the undersigned
issued findings and recommendations recommending that the
matter be summarily remanded to the Yolo County Superior
Court due to a lack of subject matter jurisdiction. See
Emerson v. Mitchell, No. 2:18-cv-2200 TLN DB PS, 2018 WL
4794199, at *3 (E.D. Cal. Oct. 3, 2018). After defendant
retained counsel, those findings and recommendation were
vacated, and the assigned District Judge issued an order on
March 28, 2019, remanding the matter “sua sponte to the
Superior Court of California, Yolo County, due to lack of
subject matter jurisdiction.” Emerson v.
Mitchell, No. 2:18-cv-2200 TLN DB, 2019 WL 1405600, at
*1 (E.D. Cal. Mar. 28, 2019).
On May
7, 2019, defendant again attempted to remove Yolo County
Superior Court Case No. PT18-696 to this court. On June 18,
2019, the undersigned issued findings and recommendations
recommending the matter be remanded as defendant's second
attempted removal was “in blatant disregard and
violation of the assigned District Judge's prior
order.” Emerson v. Mitchell, No. 2:19-cv-0810
TLN DB PS, 2019 WL 2513751, at *1 (E.D. Cal. June 18, 2019).
The assigned District Judge adopted those findings and
recommendations in full on August 2, 2019.
This
action concerns Yolo County Superior Court Case No.
PT19-1466. (ECF No. 1 at 2.) Although the case numbers
differ, defendant acknowledges that “[t]he instant
action involves identical claims, identical causes of action,
same parties, and stems from a common nucleus of operative
fact in . . . Yolo Superior Court Case No. PT18-696.”
(Id. at 3.) The parties' dispute stems from
defendant's belief that plaintiffs “stole”
defendant's dog “after fostering . . . for
approximately four months[.]” (Id. at 12.) The
state court action concerns plaintiffs' request for a
temporary restraining order as a result of defendant
allegedly following plaintiffs. (Id. at 25.)
In this
regard, as was true of defendant's two prior attempts at
removal, defendant's notic of removal fails to identify a
claim in plaintiffs' complaint that would provide this
court with subject matter jurisdiction. As defendant has been
repeatedly advised, the existence of federal question
jurisdiction is governed by the “well-pleaded complaint
rule.” Caterpillar Inc. v. Williams, 482 U.S.
386, 392 (1987). Accordingly, a federal question “must
be disclosed upon th face of the complaint, unaided by the
answer.” Gully v. First Nat'l Bank in
Meridian, 299 U.S. 109, 113 (1936); see also
Phillips Petrol. Co. v. Texaco, Inc., 415 U.S. 125,
127-28 (1974).
In
light of the assigned District Judge's prior orders, and
the apparent lack of subject matter jurisdiction from the
face of plaintiffs' pleading, the undersigned finds that
this matter should be summarily remanded to the Yolo County
Superior Court.
Defendant
is also advised that the Ninth Circuit has acknowledged the
“inherent power of federal courts to regulate the
activities of abusive litigants by imposing carefully
tailored restrictions under the appropriate
circumstances.” De Long v. Hennessey, 912 F.2d
1144, 1146 (9th Cir. 1990) (discussing requirements, pursuant
to the All Writs Act, 28 U.S.C. § 1651(a), for issuing
an order requiring a litigant to seek permission from the
court prior to filing any future suits); see also Molski
v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057-62 (9th
Cir. 2007).
Local
Rule 151(b) provides that “[t]he provisions of Title
3A, part 2, of the California Code of Civil Procedure,
relating to vexatious litigants, are hereby adopted as a
procedural rule of this Court on the basis of which the Court
may order the giving of security, bond, or undertaking,
although the power of the court shall not be limited
thereby.” California Code of Civil Procedure, Title 3A,
part 2, commences with § 391 and defines a
“vexatious litigant” as including those persons
acting in propria persona who “repeatedly files
unmeritorious motions, pleadings, or other papers . . . or
engages in other tactics that are frivolous or solely
intended to cause unnecessary delay.” Cal. Code Civ.
Pro. § 391(b)(3).
“When
district courts seek to impose pre-filing restrictions, they
must: (1) give litigants notice and ‘an opportunity to
oppose the order before it [is] entered'; (2) compile an
adequate record for appellate review, including ‘a
listing of all the cases and motions that led the district
court to conclude that a vexatious litigant order was
needed'; (3) make substantive findings of frivolousness
or harassment; and (4) tailor the order narrowly so as
‘to closely fit the specific vice
encountered.'” Ringgold-Lockhart v. County of
Los Angeles, 761 F.3d 1057, 1062 (9th Cir. 2014)
(quoting DeLong, 912 F.2d at 1147-48).
Alternatively, “the district court may make [a] finding
that the litigant's filings ‘show a pattern of
harassment.'” Ringgold-Lockhart, 761 F.3d
at 1064 (quoting De Long, 912 F.2d at 1148). Here,
the undersigned finds that defendant's filing is
frivolous and harassing.
Accordingly,
IT IS HEREBY RECOMMENDED that:
1.
Defendant's August 9, 2019 motion to proceed in forma
pauperis (ECF No. 2) be denied;
2. This
action be remanded to the Yolo County Superior Court; and
3. The
Clerk of the Court be ordered not to open another case
removing Yolo County ...