Opinion
Case No. 2:20-cv-01777-KJM-JDP (PS)
02-10-2021
STATE OF CALIFORNIA, Plaintiff, v. MIKE FICKLIN, Defendant.
ORDER GRANTING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS ECF No. 2 FINDINGS AND RECOMMENDATIONS THAT THIS CASE BE DISMISSED OBJECTIONS DUE WITHIN 14 DAYS ECF No. 1
Defendant Mike Ficklin seeks removal of his family law matter from Butte County, California Superior Court to federal court. See ECF No. 1. This matter is before the court for screening. The state court proceeding is closed; thus, it cannot be removed to federal court. I will recommend that this case be dismissed. I will also grant plaintiff's motion to proceed in forma pauperis. ECF No. 2.
The court takes judicial notice of the case information in Baca v. Ficklin, No. 17FL01814, available at https://www.buttecourt.ca.gov/CaseInformation/ (follow "Case Information" hyperlink; then "Smart Search" hyperlink and enter "17FL01814" into the search field).
A notice of removal must be filed within 30 days of service of the state court pleadings and joined by all defendants in the proceeding. 28 U.S.C. § 1446(b). Here, defendant's case in superior court began on September 12, 2017, with a request for a domestic violence restraining order against minor children. Defendant filed his notice of removal in this court three years later on September 3, 2020. Thus, defendant's notice is untimely. Dismissal is appropriate here because the state action has been closed, rendering remand unavailable.
It also appears that the court lacks subject matter jurisdiction to hear this case because defendant is challenging state laws and does not allege diversity jurisdiction. See 28 U.S.C. § 1446; Ankenbrandt v. Richards, 504 U.S. 689, 695 (1992). --------
Order
Defendant Mike Ficklin's motion for leave to proceed in forma pauperis, ECF No. 2, is granted.
Findings and Recommendations
I recommend that the court dismiss this case and that all pending motions be denied as moot. I submit these findings and recommendations to the district judge under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within 14 days of the service of the findings and recommendations, the parties may file written objections to the findings and recommendations with the court and serve a copy on all parties. That document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The district judge will review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). IT IS SO ORDERED. Dated: February 10, 2021
/s/_________
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE