(PS) Sheetmetal & Assoc. v. Federal Express Corp. ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHEETMETAL & ASSOCIATES, No. 2:19-cv-2154-TLN-EFB PS 12 Plaintiff, 13 v. ORDER 14 FEDERAL EXPRESS CORPORATION, 15 Defendant. 16 17 Shortly after removing this action from the Solano County Superior Court, defendant filed 18 an ex parte application to withdraw its notice of removal. ECF No. 4. That application explains 19 that after removal to federal court, defendant learned that the state court had previously declared 20 plaintiff a vexatious litigant subject to a prefiling order that requires him to seek leave from the 21 presiding state court judge prior to commencing any civil action. Id. at 2; see Cal. Civ. Proc. 22 Code § 391.7(a). Defendant’s notice further states that this case should be remanded because 23 plaintiff failed to seek leave prior to commencing it in state court. ECF No. 4 at 2. 24 Notwithstanding plaintiff’s alleged failure to comply with state law and court orders, 25 defendant may not simply withdraw its notice of removal. Upon the filing of the notice of 26 removal in both federal and state court,1 the state court was divested of jurisdiction. 28 U.S.C. 27 1 The notice of removal states that defendant contemporaneously filed a notice of removal 28 with the Solano County Superior Court. ECF No. 1 at 5. 1 | § 1446(d) (removing party shall promptly “file a copy of the notice [of removal] with the clerk of 2 | such State court, which shall effect the removal and the State court shall proceed no further unless 3 || and until the case is remanded.”); see Maseda v. Honda Motor Co., Ltd., 861 F2d 1248, 1254 n.11 4 | (‘[T]he filing of a removal petition terminates the state court’s jurisdiction until the case is 5 || remanded, even in a case improperly removed.”); Gastelum v. American Family Mut. Ins. Co., 6 | 2014 WL 7338931, at * 2 (D. Nev. Dec. 23, 2014) (“It is well established that, “Removal divests 7 | the state court of jurisdiction.’”’) (quoting Karl v. Quality Loan Serv. Corp., 759 F. Supp. 2d 1240, 8 | 1245 (D. Nev. 2010)). 9 Consequently, the state court is without jurisdiction to conduct further proceedings in this 10 || case unless and until it is remanded. Defendant’s ex parte notice to withdraw its notice of 11 | removal does not achieve that result. Instead, to seek remand defendant must file a motion in 12 || compliance with Federal Rules of Civil Procedure or the court’s Local Rules that sets forth the 13 | legal basis for remanding the case back to the state court. See E.D. Cal. L.R. 230 and 28 U.S.C. 14 || § 1447. No such motion has been filed. 15 Accordingly, defendant’s ex parte notice to withdraw its notice of removal will be 16 || disregarded and the case will remain before this court. Defendant is free to proceed in this court 17 || with a properly filed motion to remand, but any such motion must set forth the grounds and legal 18 || authority for remanding the action to the state court. 19 | DATED: November 4, 2019. x tid, PDEA EDMUND F. BRENNAN 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28