Gross Mortgage Corporation v. Al-Mansur
Filing
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ORDER by Judge Yvonne Gonzalez Rogers granting 6 Motion to Remand for Lack of Jurisdiction (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 8/6/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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GROSS MORTGAGE CORPORATION,
Plaintiff,
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Northern District of California
United States District Court
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Case No.: C12-CV-03508-YGR
ORDER GRANTING PLAINTIFF'S MOTION TO
REMAND FOR LACK OF JURISDICTION
vs.
SABIR JAMIL AL-MANSUR,
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Defendant.
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Defendant Sabir Al-Mansur ("Defendant") removed this case from the Alameda County
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Superior Court. (Dkt. No. 1 ("Initial Removal Notice") at 1.) The underlying complaint alleges
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unlawful detainer pursuant to California Code of Civil Procedure (“CCP”) section 1161a. Id. at
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ECF pp. 13-15 (Unlawful Detainer Complaint).
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Plaintiff Gross Mortgage Corporation ("Plaintiff") filed a complaint for unlawful detainer
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against Defendant on or about October 28, 2011. Case No. 12-cv-01102-YGR (Dkt. No. 1 at ECF
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pp. 6-8). Defendant subsequently removed that action to this Court on March 6, 2012. Case No.
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12-cv-01102-YGR (Dkt. No. 1 at ECF pp. 2-5 (“First Notice of Removal”)). This Court remanded
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that case on April 24, 2012, after finding neither federal question nor diversity jurisdiction was
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proper. Case No. 12-cv-01102-YGR (Dkt. No. 27 ("First Remand Order")). On or about
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December 30, 2011, Plaintiff filed another complaint against Defendant. Initial Removal Notice at
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ECF pp. 13-15. This complaint, the operative complaint in this action, alleged unlawful detainer
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under CCP section 1161a. Defendant removed to this Court on July 6, 2012 and filed an Amended
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Notice of Removal on July 12, 2012, arguing removal jurisdiction is proper under both 28 U.S.C.
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sections 1441 and 1443. (Dkt. No. 7 ("Amended Notice of Removal").) At the time Defendant
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filed his Amended Notice of Removal, Plaintiff had already filed the instant Motion to Remand for
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Lack of Jurisdiction, on July 9, 2012. (Dkt. No. 6 ("Motion to Remand").)
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1.
28 U.S.C. § 1441
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In the Amended Notice of Removal, Defendant alleges that removal under section 1441 is
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proper because the Court has original jurisdiction over this action pursuant to 28 U.S.C. sections
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1331, 1343, 1348, and 1356. Amended Notice of Removal at 4-9. The Court takes each claimed
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basis of original jurisdiction in turn.
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Under 28 U.S.C. section 1441(a), "any civil action brought in a State court of which the
the defendants, to the district court of the United States for the district and division embracing the
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Northern District of California
district courts of the United States have original jurisdiction, may be removed by the defendant or
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United States District Court
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place where such action is pending." 28 U.S.C. § 1441(a). However, the burden of establishing
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federal jurisdiction is on the party seeking removal, and courts strictly construe the removal statute
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against removal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566-67 (9th Cir. 1992) (internal
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citations omitted). Accordingly, "federal jurisdiction must be rejected if there is any doubt as to the
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right of removal in the first instance." Id. at 566. A district court must remand the case to state
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court if it appears at any time before final judgment that the district court lacks subject matter
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jurisdiction. 28 U.S.C. § 1447(c).
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Defendant first alleges subject matter jurisdiction under 28 U.S.C. section 1331. Under this
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statute, a district court has original jurisdiction over "all civil actions arising under the Constitution,
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laws, or treaties of the United States." 28 U.S.C. § 1331. Plaintiff previously filed an unlawful
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detainer action against Defendant on October 28, 2011, which Defendant removed to this Court on
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federal question and diversity grounds. See First Notice of Removal. This Court remanded that
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case after concluding that neither federal question jurisdiction nor diversity jurisdiction supported
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removal. First Remand Order at 2. The Court has reviewed the unlawful detainer complaint that
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Defendant attached to the Initial Removal Notice and to the Amended Notice of Removal in this
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action, and, after comparing it with the unlawful detainer complaint at issue with the First Remand
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Order, finds the underlying allegations in each to be substantively the same, although relating to
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two different properties. Compare Case No. 12-cv-03508-YGR (Dkt. No. 1 at ECF pp. 13-15) with
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Case No. 12-cv-01102-YGR (Dkt. No. 1 at ECF pp. 6-8). As stated in the Court's First Remand
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Order, Plaintiff's state court complaint alleges only unlawful detainer and is insufficient to provide
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this Court with jurisdiction under 28 U.S.C. section 1331. First Remand Order at 2. A defendant's
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counterclaims and defenses asserting a federal question cannot give rise to jurisdiction under
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section 1331. Vaden v. Discovery Bank, 556 U.S. 49, 60, 129 S. Ct. 1262, 1272 (2009). The
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federal question must be presented by the plaintiff’s complaint as it stands at the time of removal.
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Remand of the operative unlawful detainer complaint is therefore not proper under federal question
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jurisdiction.
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Northern District of California
United States District Court
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Defendant also alleges that this Court has original jurisdiction under 28 U.S.C. section
1348. Section 1348 states:
The district courts shall have original jurisdiction of any civil action commenced
by the United States, or by direction of any officer thereof, against any national
banking association, any civil action to wind up the affairs of any such
association, and any action by a banking association established in the district for
which the court is held, under chapter 2 of Title 12, to enjoin the Comptroller of
the Currency, or any receiver acting under his direction, as provided by such
chapter.
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28 U.S.C. § 1348. According to Defendant, jurisdiction under this section is proper because "[t]he
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Plaintiffs initiated the action and are a national banking association." Amended Notice of Removal
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at 7. However, section 1348 was intended only "to eliminate the right of national banks to claim
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original or removal jurisdiction solely on the basis of being a nationally chartered corporation."
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Burns v. American Nat'l Bank & Trust Co., 479 F.2d 26, 28-29 (8th Cir. 1973); Southern Elec. Steel
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Co. v. First Nat'l Bank of Birmingham, 515 F.2d 1216, 1217 (5th Cir. 1975) (citing Hermann v.
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Edwards, 238 U.S. 107 (1915)). It is well-settled that section 1348 does not grant this Court
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jurisdiction over a claim merely because one party to the claim is a national banking association.
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Id. Consequently, section 1348 provides no basis for Defendant's removal.
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Defendant further alleges original jurisdiction under 28 U.S.C. section 1356, which provides
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district courts with "original jurisdiction, exclusive of the courts of the States, of any seizure under
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any law of the United States on land or upon waters not within admiralty and maritime jurisdiction,
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except matters within the jurisdiction of the Court of International Trade[.]" 28 U.S.C. § 1356
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(emphasis added). However, jurisdiction under section 1356 requires that an officer of the United
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States seize or hold property with the authority of a "law of the United States"—i.e., a federal law.
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Hunsucker v. Phinney, 497 F.2d 29 (5th Cir. 1974) (citing Johnston v. Earle, 245 F.2d 793 (9th Cir.
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1957)). The statute is therefore inapplicable to the case at bar, where the "seizing" party is not the
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United States and Defendant has not identified any relevant federal law. See Johnston, 245 F.2d at
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79.
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Finally, Defendant alleges original jurisdiction under 28 U.S.C. section 1343. Subsection
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1343(a)(1) grants district courts original jurisdiction over civil actions commenced by any person
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"[t]o recover damages for injury to his person or property, or because of the deprivation of any right
Northern District of California
or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy
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United States District Court
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mentioned in section 1985 of Title 42." Jurisdiction under section 1343 requires more than a
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frivolous or insubstantial claim of discriminatory treatment. See Hagans v. Lavine, 415 U.S. 528,
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539 (1974); Ouzts v. Marlyand Nat. Ins. Co., 470 F.2d 790, 791 (9th Cir. 1972).
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Defendant asserts jurisdiction under section 1343 is proper because:
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Plaintiff[] conspired to hinder and obstruct the Defendant['s] . . . due process rights
by utilizing the egregious and discriminatory policies of the Superior Court of
Alameda County . . . and the California Judicial Council's Unlawful Detainer process
. . . [which] denies Defendant in the instant case . . . equal protection under the law[.]
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Amended Notice of Removal at 5-6. Based on the above argument, Defendant concludes that a
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federal question is raised to support jurisdiction. Id. at 6. Defendant's argument is flawed for a
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number of reasons. Removal is not the proper mechanism for Defendant to attack the California
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Judicial Council and/or Alameda County Superior Court’s unlawful detainer processes. Neither the
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California Judicial Council or Alameda County Superior Court are parties in this action, and claims
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that Defendant may seek to assert against them are simply not relevant to this action. Further,
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Defendant has not provided more than vague, conclusory assertions of discrimination or a
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conspiracy, nor has he described how this unlawful detainer action under California law operates in
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a discriminatory fashion, either broadly or in his individual case. The mere conclusion that equal
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protection under the law has been denied as a result of unlawful detainer processes in this case is
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insufficient. Without more, Defendant has not stated a basis for jurisdiction under section 1343.
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Because the statute requires more, it cannot provide original jurisdiction as section 1441 requires
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for removal. See Ouzts, 470 F.2d at 791.
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Based on the foregoing reasons, the Court finds that removal is not proper under 28 U.S.C.
section 1441.
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2.
28 U.S.C. § 1443
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Defendant also alleges removal is proper under 28 U.S.C. section 1443. Section 1443
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provides for the removal of any civil or criminal case commenced in state court "[a]gainst any
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person who is denied or cannot enforce in the courts of such State a right under any law providing
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for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction
Northern District of California
thereof[.]" 28 U.S.C. § 1443(1). To remove a case under section 1443(1), a notice of removal must
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United States District Court
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satisfy a two-part test. "First, the petitioners must assert, as a defense to the prosecution, rights that
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are given to them by explicit statutory enactment protecting equal racial civil rights." Patel v. Del
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Taco, 446 F.3d 996, 999 (9th Cir. 2006) (quoting Cal. v. Sandoval, 434 F.2d 635, 636 (9th Cir.
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1970)). "Second, petitioners must assert that the state courts will not enforce that right, and that
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allegation must be supported by reference to a state statute or a constitutional provision that
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purports to command the state courts to ignore the federal rights." Patel, 446 F.3d at 999 (quoting
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Sandoval, 434 F.2d at 636). A removal notice under section 1443(2) is proper only by federal
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officers or persons assisting such officers in performing their duties under federal civil rights laws.
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City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 828 (1966); Miller v. Lambeth, 443 F.3d 757,
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761 (10th Cir. 2006). Defendant does not seem to assert removal is proper under section 1443(2),
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and regardless, that section would not apply in this instance; consequently, the Court addresses
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removal under only subsection (1).
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In the present case, Defendant's Amended Notice of Removal identifies neither an "explicit
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statutory enactment protecting equal racial civil rights" nor any state statute or constitutional
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provision that "purports to command the state courts to ignore the federal rights." Moreover, what
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allegations the Amended Notice of Removal does contain are entirely conclusory in nature. Similar
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to 28 U.S.C. section 1343, section 1443(1) will not provide jurisdiction where allegations of
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discrimination are conclusory and lacking factual basis. See Bogart v. California, 355 F.2d 377,
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380-81 (9th Cir. 1966). Consequently, removal is not proper under section 1443. Gaus, 980 F.2d
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at 566 (federal jurisdiction must be rejected if there is any doubt as to the right of removal in the
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first instance); 28 U.S.C. § 1447(c) (district court must remand the case to state court if it appears at
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any time before final judgment that the district court lacks subject matter jurisdiction).
Because neither 28 U.S.C. sections 1441 nor 1443 provides this Court with removal
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jurisdiction, Plaintiff's Motion to Remand is GRANTED. For the foregoing reasons, this action is
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hereby REMANDED to the Alameda County Superior Court. This Order terminates Dkt. No. 6 and
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all pending hearing dates are VACATED. The Clerk of this Court is further ordered to forward
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certified copies of this Order and all docket entries to the Clerk of the Alameda County Superior
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Court.
Northern District of California
United States District Court
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In addition, the Court notes that a defendant may not twice remove the same action where
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each removal is based on the same grounds. St. Paul & C. Ry. Co. v. McLean, 108 U.S. 212, 217
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(1883); Midlock v. Apple Vacations West, Inc., 406 F.3d 453, 457 (7th Cir. 2005); S.W.S. Erectors,
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Inc. v. Infax, Inc., 72 F.3d 489, 492-93 (5th Cir. 1996).
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IT IS SO ORDERED.
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Dated: August 6, 2012
_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE
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