California Ins. Co. v. Lara ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KATHLEEN EMERSON, et al., No. 2:19-cv-0810 TLN DB PS 12 Plaintiffs, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 KRISTA MITCHELL, 15 Defendant. 16 17 On May 7, 2019, defendant Krista Mitchell filed a notice of removal of this action, Yolo 18 County Superior Court Case No. PT18-696, from the Yolo County Superior Court, along with a 19 motion to proceed in forma pauperis.1 (ECF Nos. 1 & 2.) Defendant is proceeding in this action 20 pro se. Accordingly, the matter was referred to the undersigned in accordance with Local Rule 21 302(c)(21) and 28 U.S.C. § 636(b)(1). 22 The court is required to screen complaints brought by parties proceeding in forma 23 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 24 2000) (en banc). Here, defendant previously removed Yolo County Superior Court Case No. 25 PT18-696, to this court on August 13, 2018. See Emerson v. Mitchell, No. 2:18-cv-2200 TLN 26 27 1 On June 13, 2019, defendant filed a motion for summary judgment and noticed the motion for hearing on July 19, 2019. (ECF No. 4.) In light of these findings and recommendations, the 28 defendant’s motion will be denied with prejudice to renewal. 1 DB PS. In that action, the undersigned issued findings and recommendations recommending that 2 the matter be summarily remanded to the Yolo County Superior Court due to a lack of subject 3 matter jurisdiction. See Emerson v. Mitchell, No. 2:18-cv-2200 TLN DB PS, 2018 WL 4794199, 4 at *3 (E.D. Cal. Oct. 3, 2018). After defendant retained counsel, those findings and 5 recommendation were vacated, and the assigned District Judge issued an order on March 28, 6 2019, remanding the matter “sua sponte to the Superior Court of California, Yolo County, due to 7 lack of subject matter jurisdiction.” Emerson v. Mitchell, No. 2:18-cv-2200 TLN DB, 2019 WL 8 1405600, at *1 (E.D. Cal. Mar. 28, 2019). 9 In this regard, defendant’s attempt to again remove this action is in blatant disregard and 10 violation of the assigned District Judge’s prior order. Moreover, defendant’s notice of removal 11 fails to identify a change in plaintiffs’ complaint that would provide this court with subject matter 12 jurisdiction. Defendant asserts that after the matter was remanded plaintiff’s “filed an ex parte 13 motion raising a federal question[.]” (ECF No. 1 at 3.) Assuming arguendo that this were true, 14 the existence of federal question jurisdiction is governed by the “well-pleaded complaint rule.” 15 Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Accordingly, a federal question “must be 16 disclosed upon the face of the complaint, unaided by the answer.” Gully v. First Nat’l Bank in 17 Meridian, 299 U.S. 109, 113 (1936); see also Phillips Petrol. Co. v. Texaco, Inc., 415 U.S. 125, 18 127-28 (1974). 19 In light of the assigned District Judge’s prior order, and the apparent lack of subject matter 20 jurisdiction, the undersigned finds that this matter should be summarily remanded to the Yolo 21 County Superior Court. 22 Accordingly, IT IS HEREBY ORDERED that defendant’s June 13, 2019 motion for 23 summary judgment (ECF No. 4) is denied without prejudice to renewal. 24 Also, IT IS HEREBY RECOMMENDED that: 25 1. This action be remanded to the Yolo County Superior Court; and 26 2. The Clerk of the Court be ordered not to open another case removing Yolo County 27 Superior Court Case No. PT18-696. 28 //// 1 These findings and recommendations will be submitted to the United States District Judge 2 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 3 | days after these findings and recommendations are filed, any party may file written objections 4 | with the court. A document containing objections should be titled “Objections to Magistrate 5 | Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed 6 | within 14 days after service of the objections. The parties are advised that failure to file 7 | objections within the specified time may, under certain circumstances, waive the right to appeal 8 | the District Court’s order. See Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 9 Dated: June 17, 2019 10 11 12 BORAH BARNES UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 | DLB:6 DB/orders/orders.pro se/emerson08 10.ifp.f&rs 25 26 27 28