Opinion
No. C 12-01264 LB
04-09-2012
FEDERAL HOME LOAN MORTGAGE CORPORATION, Plaintiff, v. ANDY PULIDO, Defendant.
ORDER REMANDING CASE TO ALAMEDA COUNTY SUPERIOR COURT
Plaintiff Federal Home Loan Mortgage Corporation ("FHLM") brought an action for unlawful detainer against Defendant Andy Pulido in Alameda County Superior Court on July 8, 2011. See Federal Home Loan Mortgage Corp. v. Pulido, No. HG-11-584489 (Alameda Cty Sup. Ct.). On January 18, 2012, Mr. Pulido, who is proceeding pro se, removed the case from state court, alleging federal question jurisdiction. Federal Home Loan Mortgage Corp. v. Pulido, No. C12-00277 LB ("Pulido I"), Notice of Removal (First), ECF No. 1. The court remanded the action back to state court because federal jurisdiction was lacking. Pulido I, 02/17/2012 Order, ECF No. 10.
Citations are to the Electronic Case File ("ECF") with pin cites to the electronic page number at the top of the document, not the pages at the bottom.
On March 14, 2012, Mr. Pulido removed the action once again. Pulido II, Notice of Removal (Second), ECF No. 1. His second notice of removal is virtually identical to his first one and is based upon the same grounds. Compare Pulido I, Notice of Removal (First), ECF No. 1 with Pulido II, Notice of Removal (Second), ECF No. 1.
Initially, Pulido II was assigned to Magistrate Judge Ryu, but it was subsequently related to Pulido I and reassigned to this court. Pulido I, Order Relating Case, ECF No. 13.
"[A] party is not entitled, under existing laws, to file a second [notice of removal] upon the same grounds, where, upon the first removal by the same party, the federal court declined to proceed and remanded the suit, because of his failure to [comply with the procedural requirements for removal]." St. Paul & C. Ry. Co. v. McLean, (1883) 108 U.S. 212, 217 (brackets added). The ban on successive removals, however, does not apply in circumstances where the moving party advances a different theory of removal based on newly discovered facts or a change in relevant law. Kirkbride v. Continental Cas. Co., 933 F.2d 729 (9th Cir. 1991) (holding that a defendant who fails in an attempt to remove on the initial pleadings may file a removal petition when subsequent pleadings or events reveal a new and different ground for removal). But absent new and different grounds for removal based on newly discovered facts or law, a defendant who improperly removes a case after a federal court previously remanded it risks being sanctioned under Federal Rule of Civil Procedure 11. See Benson v. SI Handling Systems, Inc., 188 F.3d 780, 783 (7th Cir. 1999) ("Multiple removals could encounter problems - could even lead to sanctions - if nothing of significance changes between the first and second tries.") (internal citation omitted).
As stated above, Mr. Pulido's second notice of removal is the same as his first one. He is not claiming any new grounds for removal and has not added any newly-acquired facts to his notice of removal. This action, then, must be remanded for the same reasons that the court articulated in its 02/17/2012 Order in Pulido I. See Pulido I, 02/17/2012 Order, ECF No. 10. The court need not repeat its reasons here. But the court will say that, should Mr. Pulido again remove this action to federal court on the same grounds, he may be subject to Rule 11 sanctions.
Accordingly, the court REMANDS the case to Alameda County Superior Court. The Clerk of the Court shall close the file.
All parties have consented to the undersigned's jurisdiction. Pulido II, Consent (Plaintiff) ECF No. 11; Pulido II, Consent (Defendant), ECF No. 13.
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IT IS SO ORDERED.
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LAUREL BEELER
United States Magistrate Judge