Evans v. Department of Fair Employment and Housing, No. 1:2006cv01890 - Document 4 (E.D. Cal. 2007)

Court Description: FINDINGS and RECOMMENDATIONS recommending DISMISSAL and REMAND of action on grounds that plaintiff has wrongly removed the state court action to this court; matter referred to Judge Ishii; objections to F&R due by 1/19/2007; order signed by Judge Lawrence J. O'Neill on 1/3/07. (Rooney, M)

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Evans v. Department of Fair Employment and Housing Case 1:06-cv-01890-AWI-LJO Doc. 4 Document 4 Filed 01/03/2007 Page 1 of 2 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMAR EVANS, 12 13 14 CASE NO. CV F 06-1890 AWI LJO Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS AND REMAND ACTION vs. DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, 15 Defendant. 16 17 / BACKGROUND 18 On December 27, 2006, pro se plaintiff Jamar Evans (“plaintiff”) filed his notice to remove to 19 this Court his Fresno County Superior Court action, entitled Jamar Evans v. Department of Fair 20 Employment & Housing, Case No. 05 CE CG 01873 MWS (“state action”). Like here, plaintiff is the 21 plaintiff in the state action and similarly names the California Department of Fair Employment & 22 Housing (“DFEH”) as defendant. Plaintiff appears to seek removal to this Court after unfavorable 23 rulings by the Fresno County Superior Court and California Court of Appeal, Fifth District. 24 DISCUSSION 25 A plaintiff may not remove a state action to federal court in that the right to remove is vested 26 exclusively in “the defendant or the defendants.” 28 U.S.C. § 1441(a). A plaintiff who has chosen to 27 commence an action in state court cannot later remove to federal court. Southland Corp. v. Estridge, 28 456 F.Supp. 1296, 1300 (C.D. Cal. 1978). 1 Dockets.Justia.com Case 1:06-cv-01890-AWI-LJO Document 4 Filed 01/03/2007 Page 2 of 2 1 Plaintiff is the plaintiff in the state action and is unable to remove the state action to this Court. 2 Plaintiff appears to seek removal after receiving unfavorable state court rulings. As such, this action 3 should be dismissed from this Court and remanded to the Fresno County Superior Court. 4 RECOMMENDATION AND ORDER 5 6 For the reasons discussed above, this Court RECOMMENDS to DISMISS and to REMAND this action on grounds that plaintiff has wrongly removed the state court action to this Court. 7 These findings and recommendations are submitted to the United States district judge assigned 8 to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 72-304. No later than 9 January 19, 2006, plaintiff may file written objections to these findings and recommendations with the 10 Court and in compliance with this Court’s Local Rule 72-304(b). Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” The district court will then review 12 the magistrate judge’s ruling, pursuant to 28 U.S.C. § 636(b)(1)(c)). Plaintiff is admonished that failure 13 to file objections within the specified time may waive the right to appeal the district court’s order. 14 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 16 IT IS SO ORDERED. Dated: 66h44d January 3, 2007 /s/ Lawrence J. O'Neill UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2

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