Opinion
CASE NO. CV F 11-0332 LJO GSA.
March 2, 2011
REMAND ORDER (Doc. 1.)
On February 25, 2011, plaintiff Enrique Navarro Castellanos ("plaintiff") filed papers to remove this unlawful detainer action based on purported diversity jurisdiction under 28 U.S.C. § 1332(a). The record reveals no grounds for this Court's subject matter jurisdiction of this unlawful detainer action.
"If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). This "provision is mandatory and may not be disregarded" in that "a federal court must remand for lack of subject matter jurisdiction." University of So. Ala. v. American Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999).
In situations involving lack of jurisdiction, such as this, a district court is "under a duty to examine on its own motion, without waiting for a motion to remand." In re MacNeil Bros. Co., 259 F.2d 386, 399 (1st Cir. 1958). "The fact that neither party has moved for remand is immaterial — a federal court has not only a right but a duty to inquire sua sponte into whether subject matter jurisdiction exists if the basis of such jurisdiction appears questionable." Brickyard Holdings, Inc. v. Beaufort County, 586 F.Supp.2d 409, 416 (D. S.C. 2007); see 1 Schwarzer, Tashima Wagstaffe, Cal. Practice Guide: Fed. Civil Procedure Before Trial (2010), Removal Jurisdiction, para. 2:609.5, p. 2D-11 ("district court has an independent obligation to examine removal jurisdiction").
This Court surmises that plaintiff removed this unlawful detainer action in absence of good faith to exploit the court system solely for delay or to vex defendant. The test for maliciousness is a subjective one and requires the court to "determine the . . . good faith of the applicant." Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 46 (1915). Removal disrupts the unlawful detainer action in the state court which has jurisdiction and potentially delays defendant's attempts to secure the premises at issue. In the absence of this Court's subject matter jurisdiction, plaintiff's removal is an abuse of the judicial system to warrant remand to the Stanislaus County Superior Court.
On the basis of good cause, this Court:
1. REMANDS this action to the Stanislaus County Superior Court; and
2. DIRECTS the clerk to take necessary action to remand this action to the Stanislaus County Superior Court and to close this action.
IT IS SO ORDERED.
Dated: March 2, 2011