United States District Court, D. Nevada
before the court is Magistrate Judge Ferenbach's report
and recommendation (R&R) that this case be remanded to
state court for lack of subject matter jurisdiction. (ECF No.
3). The deadline to object to the R&R was August 16,
2017. Several months have gone by since the deadline passed
and there is still no objection.
court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the
magistrate.” 28 U.S.C. § 636(b)(1). Where a party
timely objects to a magistrate judge's report and
recommendation, then the court is required to “make a
de novo determination of those portions of the [report and
recommendation] to which objection is made.” 28 U.S.C.
party fails to object, however, the court is not required to
conduct “any review at all . . . of any issue that is
not the subject of an objection.” Thomas v.
Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth Circuit
has recognized that a district court is not required to
review a magistrate judge's report and recommendation
where no objections have been filed. See United States v.
Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding
the standard of review employed by the district court when
reviewing a report and recommendation to which no objections
this court finds it appropriate to engage in a de
novo review to determine whether to adopt the
recommendation of the magistrate judge. Upon reviewing the
recommendation and underlying filings, the court finds that
good cause appears to adopt the magistrate judge's
court lacks subject matter jurisdiction. Lawson invokes
federal question jurisdiction, but the only two claims are
for unlawful detainer and declaratory relief, neither of
which grant this court federal question jurisdiction over
this action. See Wells Fargo Bank N.A. v. Robinson,
No. C 14-03663 LB, 2014 WL 4748471, at *3 (N.D. Cal. Sept.
23, 2014) (“Unlawful detainer claims do not arise under
federal law and, without more, the court lacks federal
question jurisdiction.”) (citing Fed. Nat'l
Mortg. Assoc. v. Lopez, No. C 11-00451 WHA, 2011 WL
1465678, at *1 (N.D. Cal. Apr. 15, 2011)); see also GMAC
Mortg. LLC v. Rosario, No. C 11-1894 PJH, 2011 WL
1754053, at *2 (N.D. Cal. May 9, 2011); Wescom Credit
Union v. Dudley, 2010 WL 4916578, at *2 (C.D. Cal. Nov.
22, 2010); see Benson v. State Bd. of Parole and
Probation, 384 F.2d 238, 239 (9th Cir. 1967) (holding
that declaratory relief is not an independent basis for
federal jurisdiction), cert. denied, 391 U.S. 954
(1968); Schilling v. Rogers, 363 U.S. 666, 677
defendant satisfied the requirements for removal of this
action under 28 U.S.C. § 1443(1), which allows for
removal in certain civil rights cases. A petition for removal
under § 1443(1) must satisfy a two-part test: (1)
“the petitioner must assert, as a defense to the
[action], rights that are given to them by explicit statutory
enactment protecting equal racial civil rights, ” and
(2) the “petitioner must assert that the state courts
will not enforce that right, ” with “reference to
a state statute or constitutional provision that purports to
command the state courts to ignore the federal rights.”
See Patel v. Del Taco, Inc., 446 F.3d 996, 998-99
(9th Cir. 2006).
alleges that “[d]efendant has a right to remove on the
basis that there is a pervasive state statutory program which
both on its face and as applied discriminates unfairly
against Ethnic-Surname Americans (all of whom are presumed to
be unfamiliar with legal proceedings and/or illiterate in the
English language and therefore ignorant of their rights . . .
.”). (ECF No. 1-1 at 7). In essence, then, defendant
has alleged racial discrimination by the state.
although defendant alleges that the state court system will
not protect defendant's equal protection rights,
defendant fails to reference any specific state statute or
constitutional provision that purports to command the state
courts to ignore defendant's federal rights. See
Patel, 446 F.3d at 998-99. Defendant's general
allegations of a “pervasive state statutory
program” that discriminates is fatally nonspecific for
the purposes of removal under 28 U.S.C. 1443(1) and, without
more specific facts in support of the sweeping allegation, is
defendant's charge against the entirety of NRS Chapter
107 (the “Deeds of Trust” chapter), an over-30,
000-word chapter of the Nevada Revised Statutes, is simply
too broad and implausible. (ECF No. 1-1 at 8).
the R&R will be adopted, and the case remanded.
IT IS HEREBY ORDERED that the R&R (ECF No. 3) is ADOPTED
in its recommendation.
FURTHER ORDERED that this matter is ...