(PC) Low v. Barnes et al, No. 2:2015cv00330 - Document 12 (E.D. Cal. 2015)

Court Description: FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 6/24/2015 RECOMMENDING that 10 Plaintiff's motion to remand be granted; this action be remanded to the Superior Court of California, County of Lassen; and the Clerk of the Court be directed to close this action; Referred to Judge Troy L. Nunley; Objections due within 14 days after being served with these F & R's. (Reader, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TONY LOW, 12 13 14 15 No. 2:15-cv-0330 TLN KJN P Plaintiff, v. FINDINGS AND RECOMMENDATIONS RON BARNES, et al., Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel. On February 6, 2015, this action 18 was removed from state court. Plaintiff filed a motion to remand. On May 22, 2015, plaintiff 19 was informed that despite his desire to maintain this action in state court, the original pleading 20 contained an Eighth Amendment claim, so removal was appropriate. However, plaintiff was 21 advised that he could amend the complaint to remove his federal claim and renew his motion for 22 remand. Plaintiff’s motion to remand was denied without prejudice, and the complaint was 23 dismissed with leave to amend. 24 25 26 On June 1, 2015, plaintiff renewed his motion to remand and filed an amended complaint, removing all references to Eighth Amendment claims. The propriety of removal jurisdiction is determined at the time of removal. Pullman Co. 27 v. Jenkins, 305 U.S. 534, 537 (1939). If a claim “arising under” federal law existed at the time of 28 removal, the federal court has jurisdiction though the federal claim has been dropped from the 1 1 case and only state law claims remain. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (1988); 2 Nishimoto v. Federman-Bachrach & Assoc., 903 F.2d 709, 715 (9th Cir. 1990). Here, because 3 the initial complaint, which was in effect at the time of removal, contained at least one federal 4 claim, the Court has jurisdiction. Indeed, the undersigned denied plaintiff’s motion to remand 5 based upon the federal question presented in the complaint. (ECF No. 8.) Nevertheless, though 6 plaintiff “may not compel remand by amending [the] complaint to eliminate the federal question 7 upon which removal was based” (Sparta Surgical Corp. v. Nat’l Assoc. of Sec. Dealers, Inc., 159 8 F.3d 1209, 1213 (9th Cir. 1988)), if all federal claims are eliminated from an action, federal 9 courts have discretion to remand the remaining state law claims. Harrell v. 20th Century Ins. Co., 10 934 F.2d 203, 205 (9th Cir. 1991) (“It is generally within a district court’s discretion to retain 11 jurisdiction to adjudicate the pendent state claims or remand them to state court.”). 12 In choosing whether to retain jurisdiction, the court must consider “the values of judicial 13 economy, convenience, fairness, and comity.” Carnegie-Mellon, 484 U.S. at 350. Based upon 14 these factors, “it is generally preferable for a district court to remand remaining pendent claims to 15 state court.” Harrell, 934 F.2d at 205; see also Carnegie-Mellon, 484 U.S. at 350 n.7 (“these 16 factors usually will favor a decision to relinquish jurisdiction when state issues substantially 17 predominate”) (internal quotation marks and citation omitted). 18 In this case, the above factors weigh in favor of remand. Given the ongoing crisis in the 19 Eastern District created by the crushing case load and lack of judicial resources, the undersigned 20 finds that judicial economy weighs in favor of remand. “With regards to comity, the path that 21 best preserves the rights of the state to preside over the court matters is to remand the case.” 22 Loder v. World Sav. Bank, N.A., 2011 WL 3861902, at * 11 (N.D. Cal. Sept. 1, 2011). There is 23 no evidence that this court is a more convenient forum than the state court. Fairness also supports 24 remand. Although the original pleading claimed an Eighth Amendment violation, plaintiff failed 25 to allege facts demonstrating that any defendant acted with a culpable state of mind; rather, 26 plaintiff alleged that defendants were negligent, which fails to state a cognizable Eighth 27 Amendment claim. (ECF No. 8 at 4-7.) Notably, the Ninth Circuit has acknowledged that 28 remand is proper when, as here, the plaintiff amends the complaint to remove federal claims and 2 1 moves for remand without delay. See Baddie v. Berkeley Farms, Inc., 64 F.3d 487, 490-91 (9th 2 Cir. 1995). 3 Accordingly, IT IS HEREBY RECOMMENDED that: 4 1. Plaintiff’s motion to remand (ECF No. 10) be granted; 5 2. The above-entitled action be remanded to the Superior Court of California, County of 6 Lassen; and 7 3. The Clerk of the Court be directed to close this action. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 10 after being served with these findings and recommendations, any party may file written 11 objections with the court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 13 objections shall be served and filed within fourteen days after service of the objections. The 14 parties are advised that failure to file objections within the specified time may waive the right to 15 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 Dated: June 24, 2015 17 18 19 /low0330.rem 20 21 22 23 24 25 26 27 28 3

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