Lingenfelter v. Bank of England

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA

10 MICHAEL JAMES LINGENFELTER, Case No. 23-cv-0775-BAS-KSC 11 Plaintiff, ORDER REMANDING CASE TO SAN 12 DIEGO SUPERIOR COURT v.

13 BANK OF ENGLAND, 14 Defendant. 15 16 17 Plaintiff Michael James Lingenfelter, proceeding pro se, files this action against his 18 former employer, Defendant Bank of England. Plaintiff alleges (1) wrongful termination; 19 (2) workplace harassment; (3) mental, verbal, and physical abuse/bullying; (4) retaliation; 20 (5) false claims, slander, defamation, and libel; (6) hostile workplace environment; and 21 (7) interference with prospective economic relations. (Compl., ECF No. 1.) The Court 22 previously granted Plaintiff’s application to proceed in forma pauperis (“IFP”) and ordered 23 Plaintiff to show cause with respect to frivolousness. (ECF No. 11.) The Court noted, “An 24 IFP complaint ‘that merely repeats pending or previously litigated claims’ is subject to 25 dismissal as frivolous.” (Id. (quoting Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th 26 Cir. 1995)).) In this case, Plaintiff appends to his Complaint a state court filing, which 27 alleges the same causes of action against the same defendant. (ECF No. 1-2.) Accordingly, 1 the Court ordered Plaintiff to show cause as to why this Court should not dismiss his 2 Complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B). (Id.) 3 Plaintiff responded confirming that he had filed suit against Defendant in the 4 Superior Court of San Diego. (ECF No. 12 at 1.) He recounted a series of attempts to serve 5 Defendant in the state court case, accusing Defendant of “manipulating Plaintiff’s lack of 6 procedural knowledge,” which resulted in the dismissal of “several motions.” (Id. at 2.) 7 Subsequently, Plaintiff “withdrew the Superior Court case and refiled in United States 8 District Court.” (Id. at 3.) 9 In light of Plaintiff’s response to the Court’s Order to Show Cause, the Court 10 obtained the docket report for case number 37-2022-00024459-CU-WT-CTL in the 11 Superior Court of San Diego.1 According to the docket report, Plaintiff filed his state court 12 complaint on June 22, 2022, and the case was litigated for approximately ten months. On 13 April 25, 2023, Plaintiff filed a “Notice of Removal to Federal Court.” This stayed all 14 litigation in state court but did not terminate the case. Plaintiff’s state court case remains 15 open, and the “Case Status” is “Removed to Federal Court.” 16 Plaintiff, however, did not file a notice of removal in federal court. Instead, he filed 17 a new Complaint and appended his state court complaint. Although this is procedurally 18 improper, the Court may construe Plaintiff’s filing as a notice of removal under liberal 19 pleading standards for pro se litigants. See Barberio v. City of Burien, No. C05-1569P, 20 2006 WL 2237704, at *3 (W.D. Wash. Aug. 3, 2006) (“Nothing in 28 U.S.C. § 1446(a) 21 provides that a state-court proceeding may be removed by filing an entirely new complaint 22 in federal court that requests removal of the state-court action.”); Erickson v. Pardus, 551 23 U.S. 89, 94 (2007) (“A document filed pro se is ‘to be liberally construed,’ and ‘a pro se 24

25 1 The Court takes judicial notice of the Superior Court of San Diego docket report. Under Rule 201(b), 26 the court may judicially notice a fact that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). A state court docket is a source whose 27 accuracy cannot reasonably be questioned. See Ryti v. State Farm Gen. Ins. Co., No. C 12-01709 JW, 2012 WL 2339718, at *1 n.4 (N.D. Cal. May 30, 2012) (granting a request for judicial notice regarding a 1 |}complaint, however inartfully pleaded, must be held to less stringent standards than formal 2 ||pleadings drafted by lawyers.’” (citations omitted)). But Plaintiff's removal attempt has a 3 ||more fundamental problem. The removal statute allows only defendants to remove to 4 ||federal courts; a plaintiff has no right to remove his own case. See 28 U.S.C. § 1446; 5 || Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 106 (1941) (“The Court ruled that the 6 || plaintiff, having submitted himself to the jurisdiction of the state court, was not entitled to 7 himself of a right of removal conferred only on a defendant who has not submitted 8 || himself □□ the jurisdiction.”). As a result, Plaintiff has no right to remove this case to federal 9 court, and the Court must remand it back to state court. 10 Accordingly, the Court REMANDS this action to the San Diego Superior Court. 11 || Further, because the Court lacks jurisdiction over this case, the Court TERMINATES 12 || Plaintiff's motion to appoint counsel (ECF No. 2) and request for sanctions and attorneys’ 13 (ECF No. 6). 14 IT IS SO ORDERED. 15 ) fl 16 || DATED: August 21, 2023 Ly A A (Syohan. 6 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28