Opinion
Case No. CV04-105-N-EJL
April 9, 2004
ORDER
Pursuant to 28 U.S.C. § 1.446, the Plaintiffs removed this action from state court and invoked this Court's federal question jurisdiction in accordance with 28 U.S.C. § 1331. However, a "plaintiff who commences his action in a state court cannot effectuate removal to a federal court even if he could have originated the action in a federal court. . . ." Oregon Egg Producers v. Andrew, 458 F.2d 382 (9th Cir. 1972); see also American Int'l Underwriters (Philippines), Inc. v. Continental Ins. Co., S43 F.2d 1253, 1260 (9th Cir. 1988). Accordingly, this case will be remanded to state court pursuant to 28 U.S.C. § 1447(c) for lack of subject matter jurisdiction.
This Court must sua sponte review all removed actions to confirm that federal jurisdiction is proper, Sparta Surgical Corp. v. Nat'l Ass'n. Sec. Dealers. Inc., 159 F.3d 1209, 1211 (9th Cir. 1998) ("lf a district court lacks subject matter jurisdiction over a removed action, it has the duty to remand it. . . ."); Snell v. Cleveland. Inc., 316 F.3d 822, 824, 826 (9th Cir. 2002) (explaining that a "court may raise the question of subject matter jurisdiction, sua. sponte, at any time").
ORDER
Based on the foregoing, and being fully advised in the premises, IT IS HEREBY ORDERED that1. Defendants' Motion to Remand and Alternative Motion to Dismiss (Docket No. 5) is rendered MOOT by this Order; and
The Court declines to exercise its discretion to award Defendants attorneys' fees.
2. The Litigation Order entered on March 17, 2004 is VACATED; and
3. The above-entitled action is remanded to the district court of the First Judicial District of the State of Idaho, In and For the County of Benewah, No. CV 03-00302; and the Clerk shall a certified copy of this Order to the Clerk of the aforesaid Idaho state court,