(PS) Merkelo, et al. v. Spidell, No. 2:2014cv02400 - Document 3 (E.D. Cal. 2014)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/20/2014 RECOMMENDING that the Merkeleo II case be remanded to Sacramento Superior Court. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Donati, J)

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(PS) Merkelo, et al. v. Spidell Doc. 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 JERRY MERKELO, HANNA MERKELO-CHEBERENCHYK, Plaintiff, 13 14 15 No. 2:14-cv-2400-KJM-EFB PS FINDINGS AND RECOMMENDATIONS v. GEORGINA SPIDELL, Defendant. 16 17 This action, in which the parties are pro se, proceeds before this court pursuant to Eastern 18 District of California Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). On October 14, 2014, 19 defendant Georgina Spidell, proceeding pro se, filed a second and duplicative notice of removal, 20 which purports to remove plaintiffs’ unlawful detainer action, filed as Sacramento County 21 Superior Court case number 14UD04126. ECF No. 1 at 6.1 As discussed below, the assigned 22 district judge remanded the unlawful detainer action to the state court on October 28, 2014 and 23 Spidell’s removal petition filed on October 14 is duplicative. 24 25 26 27 28 1 The notice of removal includes a copy of defendant’s answer filed in the state court, but does not include a copy of the complaint. However, the notice identifies the same superior court case number as the complaint removed in 2:14-cv-2010-KJM-EFB PS. Also on October 14, 2014, defendant filed applications to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. ECF No. 2. However, in light of the recommendation herein that this action be remanded, defendant’s requests to proceed in forma pauperis is moot. 1 Dockets.Justia.com 1 Plaintiffs filed the unlawful detainer action in state court on June 9, 2014, against 2 Georgina and Rodney Spidell. Defendant Rodney Spidell2 filed a notice of removal on August 3 29, 2014, which resulted in a civil action being opened in this court as Merkelo v. Spidell, No. 4 2:14-cv-2010-KJM-EFB (Merkelo I), ECF No. 1 (removing Sacramento County Superior Court 5 case number 14UD04126). Judge Mueller ordered the action remanded to the state court on 6 October 28, 2014. Id. at ECF No. 9. During the interim, while the first removal was still pending 7 before this court, Georgina Spidell filed the second and duplicative notice of removal on October 8 14, 2014, purporting to remove the same Superior Court case number 14UD04126. She did not, 9 however, file the required notice of related cases, see Local Rule 123, or otherwise file any notice 10 informing the court that Rodney Spidell had previously sought to remove the same action. Thus, 11 the clerk opened a second and duplicative civil case in this court. 12 It is clear that the notice of removal filed by Georgina Spidell seeks to remove the 13 identical unlawful detainer action that had purportedly already been removed to this court and has 14 since been remanded in Merkelo I. See Merkelo v. Spidell, No. 2:14-cv-2400-KJM-EFB (Merkelo 15 II) (again purporting to remove Sacramento County Superior Court case number 14UD04126). 16 Apart from Georgina Spidell finally joining in the removal attempted by Rodney Spidell, her 17 removal petition is completely duplicative of Merkelo I and must be remanded for the same 18 reasons as Merkelo I. See Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (holding 19 that a complaint that “merely repeats pending or previously litigated claims” may be dismissed as 20 frivolous under the authority of then-numbered 28 U.S.C. § 1915(d)); see also Adams v. Cal. 21 Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007) (“Plaintiffs generally have no right to 22 maintain two separate actions involving the same subject matter at the same time in the same 23 court and against the same defendant.” ) (citation and quotation marks omitted), cert. denied, 552 24 U.S. 1076 (2007); accord Kahre v. Damm, 342 F. App’x 267, 268-69 (9th Cir. 2009) (affirming 25 ///// 26 27 28 2 The complaint named both Rodney and Georgina Spidell, Merkelo I, ECF No. 1, p. 25 of 37 at ¶ 1. However, only Rodney Spidell signed the first notice of removal and only he was listed in the caption of his notice and removal petition. 2 1 dismissal of later-filed case where that case contained claims that were almost entirely duplicative 2 of claims asserted in an earlier-filed case). 3 For the reasons stated above and in this court’s earlier Findings and Recommendation and 4 in Judge Mueller’s remand order filed in Merkelo I, ECF Nos. 3 and 9, this matter must be 5 remanded to the state court. 6 Accordingly, it is hereby RECOMMENDED that Merkelo II be remanded to the Superior 7 Court of the State of California in and for the County of Sacramento and that the Clerk of Court 8 be directed to close this case. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 14 shall be served and filed within fourteen days after service of the objections. Failure to file 15 objections within the specified time may waive the right to appeal the District Court’s order. 16 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th 17 Cir. 1991). 18 DATED: November 20, 2014. 19 20 21 22 23 24 25 26 27 28 3

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