Mertan v. ER Squibb & Sons, Inc., CV 80-2976-AAH.
| Decision Date | 11 July 1980 |
| Docket Number | No. CV 80-2976-AAH.,CV 80-2976-AAH. |
| Court | U.S. District Court — Central District of California |
| Parties | Roberta Zucker MERTAN, Plaintiff, v. E.R. SQUIBB & SONS, INC., and The Upjohn Company, Defendants. |
Haight, Dickson, Brown & Bonesteel by Robert L. Dickson, Santa Monica, Cal., for petitioner E.R. Squibb & Sons, Inc.
Memering & DeMers by John W. Jeffrey, Sacramento, Cal., for Co-Petitioner The Upjohn Co.
Schlifkin & Papell by Robert S. Schlifkin, Los Angeles, Cal., for respondent Roberta Zucker Mertan.
DENYING PETITION FOR REMOVAL WITH PREJUDICE and REMANDING ACTION TO STATE COURT
This matter comes before the Court sua sponte and upon its own motion, for ruling and order. The Court has read, examined, analyzed and considered the following:
1. PETITION FOR REMOVAL OF CAUSE FROM THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES filed on July 9, 1980, seeking removal of Los Angeles Superior Court Case No. C 111-283, currently and for the last eight weeks on trial in said State Superior Court, Department 39, the Honorable William A. Drake, Judge Presiding.
2. The papers, points and authorities filed therewith, including ORDER REMANDING ACTION made, filed and entered here in this United States District Court, Central District of California, by our brother Judge, the Honorable Malcolm M. Lucas, on July 3, 1980, remanding the aforesaid State proceeding to the State Superior Court, under the same title but under the No. CV 80-2828-MML.
3. JOINDER OF THE UPJOHN COMPANY IN PETITION FOR REMOVAL FILED BY E.R. SQUIBB & SONS, INC., filed on July 9, 1980.
4. AFFIDAVIT OF EMMETT JOHN GANTZ IN SUPPORT OF PETITION FOR REMOVAL OF CAUSE FROM THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES (Los Angeles Superior Court Case No. C 111-283).
The Court finds the following facts to be true and correct:
1. This Petition for Removal filed July 9, 1980 is the second one filed improvidently and without jurisdiction, and constitutes grave misuse and intolerable abuse of the process of the United States District Court, Central District of California.
2. This Second Petition for Removal has resulted in the second removal of the State proceeding No. C 111-283, Los Angeles County Superior Court, Hon. William A. Drake, Judge Presiding, Department 39. The First Petition for Removal, filed on June 27, 1980, under C.D.Cal. No. CV 80-2828-MML, resulted in the first removal of this State proceeding, which removal was nullified by Judge Lucas on July 3, 1980, by his ORDER REMANDING ACTION, sending back the State proceeding to the State Court on the grounds that it was improvidently removed, and without jurisdiction. 28 U.S.C. § 1447(c).
3. The same facts upon which Judge Lucas found that he was mandatorily required to remand the State action to the State Court still exist and we now find the facts here to be identical with the facts Judge Lucas found there, to wit:
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