Opinion
No. 1:05cv1451 FVS DLB.
January 24, 2006
FINDINGS AND RECOMMENDATION REGARDING DISMISSAL OF NOTICE OF REMOVAL
On November 16, 2005, Defendant RICHARD GREG POMARES ("Defendant") filed a notice of removal of a state unlawful detainer action, Stanislaus County Superior Court case number 37252. Defendant also filed a motion to proceed in forma pauperis.
Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court determines that the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.
The right to remove a case from state to federal court is entirely a creature of statute; the types of cases that may be removed and the conditions under which they may be removed are governed entirely by federal statutes. 28 U.S.C. §§ 1441 et. seq. The defendant seeking removal of an action to federal court has the burden of establishing the grounds for federal jurisdiction in the case and the burden of showing that he has complied with the procedural requirement for removal. California ex rel. Lockyer v. Dynegy 375 F.3d 831 (9th Cir. 2004).
Defendant makes only vague references to the reasons he seeks removal. He complains of fraudulent service in the state action, "fraudulent and unconstitutional proceedings," and violations of his rights to a jury trial and procedural due process. Motion for Removal, at 2-3. However, these allegations do not render the underlying action removable. A cause of action under federal law arises "only when the plaintiff's well-pleaded complaint raises issues of federal law." In re Miles, 430 F.3d 1083, 1088 (9th Cir. 2005). In other words, the complaint filed by Mr. Dalbir in the Stanislaus County Court must present questions of federal law for this case to be removable. That is not the case, as the unlawful detainer complaint contains only issues of state law. Defendant's allegations of constitutional violations occurring during the state action do not make the action removable.
The Court finds no basis for removal of this action. Accordingly, the Court HEREBY RECOMMENDS that the Notice of Removal BE DISMISSED in its entirety for lack of jurisdiction. In doing so, the Court recommends that the dismissal be without leave to amend as the deficiencies are not curable.
These findings and recommendations will be submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) days after being served with these findings and recommendations, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.