Neilson v. Bell ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 N.L. Neilson, No. 1:22-cv-01265-ADA-CDB 12 Plaintiff, ORDER DISMISSING ACTION FOR IMPROPER REMOVAL AND REMANDING 13 v. MATTER TO KERN COUNTY SUPERIOR COURT 14 Michael Bell, et al., (ECF No. 1) 15 Defendants. 16 17 On October 5, 2022, Plaintiff N.L. Neilson filed a request to remove to federal court a 18 matter originally filed in California state court. For the following reasons, the Court must deny 19 Plaintiff’s request and remand this action to state court. 20 As an initial matter, federal statute permits only defendants to remove state actions to 21 federal court. See 28 U.S.C. § 1441(a). A plaintiff who has chosen to file an action in state court 22 generally cannot remove to federal court. Progressive West Ins. Co. v. Preciado, 479 F.3d 1014, 23 1017–18 (9th Cir. 2007). Even if Plaintiff were permitted to remove this matter to federal court, 24 removal based on diversity of citizenship is only available within one year after the 25 commencement of the state action. 28 U.S.C. § 1446(c)(1). Plaintiff provides no documentation 26 regarding the state case, but the attached state court fee waiver form has a filing date of May 28, 27 2020, over two years before filing this notice of removal. Plaintiff’s request also fails to include 28 “a copy of all process, pleadings, and orders” in the state court case, as required under 28 U.S.C. 1 | § 1446(a). Finally, while Plaintiff's request contains an affidavit granting a fee waiver in Kern 2 | County Superior Court, this waiver does not have effect in this court. Plaintiff has neither paid 3 | this court’s filing fee nor submitted an application to proceed in forma pauperis. 4 Accordingly, 5 1. Plaintiff's request to remove the state court action to federal court, (ECF No. 1), is 6 denied with prejudice; 7 2. The matter is remanded to Kern County Superior Court; 8 3. The Clerk of Court is directed to close this case and terminate all pending motions. 9 10 11 | TPIS SO ORDERED. 12 Dated: _ October 6, 2022 3 UNITED f£TATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28