Clements v. Ivory ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GEORGE BERNARD CLEMENTS, Case No. 23-cv-05202-AMO 8 Plaintiff, ORDER GRANTING MOTION TO 9 v. REMAND 10 MILOUS JAMES IVORY, et al., Re: Dkt. No. 8 Defendants. 11 12 13 Before the Court is Plaintiff George Bernard Clements, Jr.’s (“Clements”) unopposed 14 motion to remand. The matter is suitable for decision without oral argument. See Civil L.R. 7-6. 15 This Order assumes familiarity with the facts of the case, the parties’ arguments, and the relevant 16 law. Having read the parties’ papers and carefully considered their arguments and the relevant 17 legal authority, the Court hereby GRANTS the motion to remand for the following reasons. 18 Clements argues that remand is proper because removal was untimely and the well-pleaded 19 complaint does not raise a federal question. ECF 8 at 1-2.1 Defendant Milous James Ivory 20 (“Ivory”), who removed the case, failed to respond to the motion to remand. The Court agrees 21 with Clements. 22 The notice of removal was untimely as it occurred long after the 30-day window permitted 23 in 28 U.S.C. § 1446(b)(1). Clements does not allege when he served Ivory. However, Ivory 24 answered Plaintiff’s complaint on April 4, 2022, and was thus served at least some time prior to 25 April 4, 2022. ECF 8-1 (“Brink Decl.”) ¶ 3. Ivory filed the notice of removal over 18 months 26 1 Defendant does not allege subject matter jurisdiction based on diversity of citizenship. To the 27 extent he alleges diversity of citizenship, ECF 1 at 3, he has failed to provide any evidence of the 1 later, on October 12, 2023. Id.; ECF 1. As removal was untimely, and Plaintiff timely challenged 2 removal on this basis, see ECF 8, the case must be remanded. See 28 U.S.C. § 1447; Babasa v. 3 LensCrafters, Inc., 498 F.3d 972, 974 (9th Cir. 2007) (“If a notice of removal is filed after this 4 |} thirty-day window, it is untimely and remand to state court is therefore appropriate.”’). 5 Even had Clements timely removed the case to this Court, nothing on the face of the 6 complaint shows any claims arising under the Constitution, laws, or treaties of the United States. 7 ECF | at 8-29 (raising claims for fraud, intentional and negligent misrepresentation, unjust 8 enrichment, quiet title, slander of title, and negligence); see 28 U.S.C § 1331; Metropolitan Life 9 || Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). In the notice of removal, Ivory cites broadly to the 10 Fifth and Fourteenth Amendments, ECF | at 2, neither of which are raised by the complaint. 11 Ivory also refers to two pages of the complaint which cite to a federal immigration law that the 12 || parties agree “was supposed to be stricken from the complaint.” Jd.; see ECF 8 at 4. The g 13 complaint does not raise immigration issues. See ECF 1 at 8-29. Because Ivory has not identified 14 any federal question in the complaint, the Court does not have federal question jurisdiction over 3 15 this case. a 16 CONCLUSION 17 For the foregoing reasons, the Court does not have subject matter jurisdiction. 18 Accordingly, the Court GRANTS Plaintiff's motion to remand. The Clerk SHALL transmit the 19 file to the Superior Court of the State of California, County of San Francisco and close the case. 20 21 22 23 IT IS SO ORDERED. 24 Dated: December 8, 2023 25 wt) - ask ARACELI MARTINEZ-OLGUIN 27 United States District Judge 28