Romero v. American Express Centurion Bank, No. 1:2007cv00369 - Document 3 (E.D. Cal. 2007)

Court Description: FINDINGS and RECOMMENDATIONS signed by Judge Dennis L. Beck on 03/09/07 recommending that action be DISMISSED; referred to Judge Lawrence J. O'Neill, Objections to F&R due by 4/16/2007. (Lundstrom, T)

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Romero v. American Express Centurion Bank Case 1:07-cv-00369-LJO-DLB Doc. 3 Document 3 Filed 03/12/2007 Page 1 of 3 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 IN RE: ROGER D. ROMERO, 9 10 Plaintiff, 11 v. 12 13 AMERICAN EXPRESS CENTURION BANK, N.A., 14 15 Defendant. ) 1:07cv0369 LJO DLB ) ) ) FINDINGS AND RECOMMENDATION ) REGARDING DISMISSAL OF ACTION ) ) ) ) ) ) ) ) ) ) 16 17 Plaintiff Roger D. Romero (“Plaintiff”), proceeding pro se, filed a document entitled 18 “Motion to Transfer to Federal District Court” on March 7, 2007.1 Plaintiff names American 19 Express Centurion Bank, N.A., as Defendant. This Court construes the motion as Plaintiff’s 20 attempt to remove an arbitration proceeding to this Court based on the following language: 21 22 Plaintiff moves the Court to transfer this action from American Arbitration Association to Federal Jurisdiction for the reasons that the defendant is a banking institution that is under the direct regulatory control of the Secretary of the Treasury pursuant to the Banking Holiday Act of Congress of 1933 codified at 12 USCA § 95. 23 Motion, at 3. Plaintiff argues that this Court has exclusive federal jurisdiction over the pending 24 arbitration based on “banking statutes mandated by Congress.” Motion, at 3. 25 26 27 28 1 Plaintiff filed very similar actions in (1) 1:07cv0164 OW W LJO, where Findings and Recommendation issued January 31, 2007, are pending; and (2) 1:07cv0166 LJO DLB, where Findings and Recommendation issued March 1, 2007, are pending. 1 Dockets.Justia.com Case 1:07-cv-00369-LJO-DLB 1 2 Document 3 Filed 03/12/2007 Page 2 of 3 DISCUSSION By statute “any civil action brought in a State court of which the district courts of the 3 United States have original jurisdiction, may be removed by the defendant or the defendants, to 4 the district court of the United States for the district and division embracing the place where such 5 action is pending.” 28 U.S.C. § 1441(a). Federal courts “shall have original jurisdiction of all 6 civil actions arising under the Constitution, laws or treatises of the United States.” 28 U.S.C. § 7 1331. Because of the “Congressional purpose to restrict the jurisdiction of the federal courts on 8 removal,” the removal statute is strictly construed against removal. Shamrock Oil & Gas Corp.v. 9 Sheets, 313 U.S. 100, 108-109 (1941); Duncal v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). 10 Federal jurisdiction “must be rejected if there is any doubt as to the right of removal in the first 11 instance.” Duncan, 76 F.3d at 1485; Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). A 12 defendant “has the burden of establishing that removal was proper.” Duncan, 76 F.3d at 1485; 13 Harris v. Provident Life and Accident Ins. Co., 26 F.3d 930, 932 (9th Cir. 1994). 14 This Court is empowered to summarily remand this action: 15 The United States district court in which such a notice [of removal] is filed shall examine the notice promptly. If it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shall make an order for summary remand. 16 17 28 U.S.C. § 1446(c)(4). 18 Plaintiff fails to demonstrate that the underlying arbitration proceeding is subject to this 19 Court’s jurisdiction. Plaintiff’s motion further fails to satisfy removal notice requirements in 20 that, among other things, the motion does not indicate a timely attempt to remove (even assuming 21 removal is available). 28 U.S.C. § 1446(a), (b). Moreover, if Plaintiff proceeds in the underlying 22 arbitration as a plaintiff, he is unable to seek removal to federal court because the right to remove 23 is vested exclusively in “the defendant or the defendants.” 28 U.S.C. § 1441(a). 24 RECOMMENDATION 25 Accordingly, for the reasons discussed above, the Court HEREBY RECOMMENDS that 26 this action be dismissed on the grounds that Plaintiff wrongly attempts to remove an underlying 27 arbitration proceeding to this Court. 28 2 Case 1:07-cv-00369-LJO-DLB 1 Document 3 Filed 03/12/2007 Page 3 of 3 These findings and recommendations are submitted to the Honorable Lawrence J. 2 O’Neill, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after 3 being served with these findings and recommendations, Defendant may file written objections 4 with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings 5 and Recommendations." Defendant is advised that failure to file objections within the specified 6 time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 7 (9th Cir. 1991). 8 9 IT IS SO ORDERED. 10 Dated: 3b142a March 9, 2007 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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