Anthony v. Galvez

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARIAN ANTHONY, Case No.: 25-CV-407 JLS (MMP)

12 Petitioner, ORDER DENYING PETITIONER’S 13 v. EX PARTE MOTION FOR RELIEF UNDER 60(b) 14 CORINA GALVEZ, 15 Respondent. (ECF No. 16) 16 17 Presently before the Court is Petitioner Marian Anthony’s (“Petitioner”) ex parte 18 Motion to Vacate Remand Under FRCP 60(b) With Memorandum of Points and 19 Authorities in Support (“Mot.,” ECF No. 16). Petitioner’s Motion seeks an order relieving 20 him from this Court’s April 4, 2025 Order (“Remand Order,” ECF No. 15) remanding this 21 action to state court. 22 BACKGROUND 23 On February 24, 2025, Petitioner filed a Notice of Removal (“Notice,” ECF No. 1). 24 However, such removal did not include a copy of the initial pleading Petitioner sought to 25 remove. Subsequently, on February 27, 2025, Plaintiff filed a Motion for Writ of 26 Mandamus; an Emergency Ex Parte Request for Relief, Order, and Hearing; and an 27 Emergency Ex Parte Motion to Dismiss Improper Procedure by Debora Cumba and Strike. 28 See ECF Nos. 2, 3, 4. 1 On March 5, 2025, the Court issued an Order directing Petitioner to show cause as 2 to why subject matter jurisdiction existed over the matter. ECF No. 6. Specifically, the 3 Court noted that Petitioner’s Notice of Removal was deficient as it did not include a copy 4 of the initial pleading, leaving the Court unable to identify the case Petitioner sought to 5 remove to federal court. Id. at 2. And the Court expressed that, to the extent Petitioner 6 was intending to remove a family matter involving child support from the Superior Court 7 of California, County of San Diego, “federal courts must decline jurisdiction of cases 8 concerning domestic relations when the primary issue concerns the status of parent and 9 child or husband and wife.” Id. at 2–3 (first quoting Buechold v. Ortiz, 401 F.2d 371, 372 10 (9th Cir. 1968); then citing Csibi v. Fustos, 670 F.2d 134, 137–38 (9th Cir. 1982); and then 11 citing Thompson v. Thompson, 798 F.2d 1547, 1558 (9th Cir. 1986)). 12 On March 24, 2025, Petitioner filed a Motion for Writ of Prohibition and Stay and a 13 Notice of Lodgment of Transcripts and Documents. ECF Nos. 7, 8. The next day, 14 Petitioner filed his Response to the Order to Show Cause. ECF No. 9. In his Response, 15 though still not providing the underlying Complaint, Petitioner clarified that he sought to 16 remove the San Diego Superior Court Case No. 19FL005322N. See id. at 1 (“Petitioner 17 Marian Anthony submits this response . . . addressing concerns about subject matter 18 jurisdiction over the removal of San Diego Superior Court Case No. 19FL005322N 19 involving Respondent Galvez.”). Petitioner argued there was jurisdiction “based on 20 constitutional claims, diversity, and state court failures necessitating federal oversight of 21 deprivation of right under color of law predicated by fraud, including fraud upon the 22 court[.]” Id. at 2. Respondent did not file a reply. See generally Docket. 23 As Petitioner identified the case he sought to remove, the Court evaluated whether 24 removal was proper, and concluded it was not. Specifically, the Court emphasized that 25 Petitioner was not alleged to be a defendant in the state action he wished to remove, and 26 accordingly, the Court found it lacked jurisdiction and could not allow this case to proceed 27 in federal court. See e.g., Sharma v. HIS Asset Loan Obligation Tr. 2007-1 by Deutsche 28 Bank Nat’l Tr. Co., 23 F.4th 1167, 1170–71 (9th Cir. 2022) (finding district court erred by 1 failing to remand where the party who removed the case was not a named defendant); see 2 also Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107–08 (1941); Am. Int'l 3 Underwriters (Philippines), Inc. v. Cont’l Ins. Co., 843 F.2d 1253, 1260 (9th Cir. 1988) 4 (“The right to remove a state court case to federal court is clearly limited to defendants.”).1 5 The Court then remanded the case 19FL005322N to the Superior Court of California, 6 County of San Diego and Petitioner’s case before this Court was closed. See Remand 7 Order. 8 Subsequently, Petitioner filed a Motion to vacate that Remand Order because “newly 9 discovered evidence–100+ hours of body-worn camera recordings obtained on July 15, 10 2024—reveals Defendant Corina Galvez’s perjury, including false allegations of gun 11 threats, and state collusion in malicious prosecution, violating Plaintiff’s Fourth, Fifth, 12 Seventh, and Fourteenth Amendment rights.” Mot. at 3. 13 ANALYSIS 14 Petitioner’s Application does not address a threshold question: whether the Court 15 has jurisdiction to review its Remand Order. The Court has an independent obligation to 16 ascertain whether it has jurisdiction, and determines that it does not. 17 Under 28 U.S.C. § 1447(d), “[a]n order remanding a case to the State court . . . is not 18 reviewable on appeal or otherwise.” The review bar of § 1447(d) applies “to remands 19 based on the grounds specified in § 1447(c), that is, a defect in removal procedure or lack 20 of subject matter jurisdiction.” Kircher v. Putnam Funds Tr., 547 U.S. 633, 640 (2006) 21 (“[W]e have relentlessly repeated that ‘any remand order issued on the grounds specified 22 in § 1447(c) [is immunized from all forms of appellate review], whether or not that order 23 might be deemed erroneous by an appellate court.’”). Section 1447(c) “has been 24 universally construed to preclude not only appellate review but also reconsideration by the 25 26 1 As the Court otherwise found removal was improper, the Court did not reach whether it would also be 27 required to decline jurisdiction over this action based on the domestic relations exception to jurisdiction. 28 See Buechold, 401 F.2d at 372; see also Csibi, 670 F.2d at 137–38. 1 district court.” Sheedman v. U.S. Dist. Court, 837 F.2d 413, 414 (9th Cir. 1988) (district 2 court barred from reconsidering its own remand order). Conversely, “if the district court 3 lacked authority to remand under § 1447(c), appellate review is not precluded.” Corona- 4 Contreras v. Gruel, 857 F.3d 1025, 1028 (9th Cir. 2017); see also Smith v. Mylan Inc., 5 761 F.3d 1042, 1044 (9th Cir. 2014) (“[Section] 1447(d) does not preclude review if the 6 district court lacked authority to remand under § 1447(c) in the first instance.”); Lively v. 7 Wild Oats Mkts., Inc., 456 F.3d 933, 937 (9th Cir. 2006) (“[T]aken together, §§ 1447(c) 8 and (d) bar appellate review of a remand order only if the district court had authority to 9 remand under § 1447(c).”). 10 Here, the Court remanded the action based on a lack of subject matter jurisdiction— 11 a ground specified in § 1447(c) that the Court may raise on its own. Specifically, the Court 12 observed that Petitioner did not allege he was a defendant in the underlying action, rather 13 he consistently referred to himself as “Petitioner” and Corina Galvez as “Respondent,” 14 titles which were supported by his attached “Register of Actions” in 19FL005322N, which 15 indicates he is the Petitioner in a “Dissolution with Minor Children.” Exhibit A2, ECF 16 No. 1-2 at 2. But § 1441(a) specifically limits removal to properly sued defendants, and 17 “contains no language allowing mistakenly omitted parties, wrongly excluded parties, or 18 any other type of non-defendant to remove an action to federal court.” Sharma, 19 23 F.4th at 1170 (finding district court erred by failing to remand where the party who 20 removed the case was not a named defendant). 21 As such, the Remand Order “was based on a lack of subject matter jurisdiction, a 22 ground set forth in § 1447(c), and therefore, under § 1447(d) it is not subject to review— 23 either on appeal or on reconsideration by the district court.” Origo Fin. Servs. Inc. v. PAR 24 Movie LLC, No. 2:24-cv-06439-AB-PD, 2024 WL 4502030, at *3 (C.D. Cal. Sept. 24, 25 2024); see also Smith, 761 F.3d at 1044 (holding that if the district court had the power to 26 remand sua sponte under 1447(c), section 1447(d) applies and there would be “no 27 jurisdiction to review even if the remand was erroneous”). 28 / / / 1 CONCLUSION 2 For the foregoing reasons, the Court DENIES Petitioner’s Motion to Vacate 3 || Remand Under FRCP 60(b) (ECF No. 16) on the ground that the Court lacks jurisdiction 4 || to reconsider its Remand Order remanding the action for lack of subject matter jurisdiction. 5 IT IS SO ORDERED. 6 ||Dated: April 29, 2025 psi L. Lo meeaitie- 7 on. Janis L. Sammartino 3 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28