Free Order on Motion to Dismiss - District Court of California - California

Case 3:08-cv-00733-MHP

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1 2 3 4 5 6 7 8 MARK ANTOINE FOSTER, 9 Plaintiff, 10 v. No. C 08-00733 MHP No. C 08-01366 MHP No. C 08-01337 MHP No. C 08-01421 MHP MEMORANDUM & ORDER ARAMARK SPORTS & ENTERTAINMENT, MORGAN, LEWIS & BOCKIUS, LLP, SPECIALTY RISK SERVICES, et al., Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On or about March 9, 2007, plaintiff commenced an action in the Superior Court for the County of San Francisco, California. Subsequently, plaintiff amended his complaint and filed three other separate actions in that same court. All were removed to this court and ordered related under this court's Civil Local Rules. The notices of removal were premised on federal question jurisdiction. Specifically, the faces of the complaints allege, inter alia, mail fraud, wire fraud, conspiracy to commit mail fraud and a violation of the Americans with Disabilities Act ("ADA"). The notices of removal did not allege diversity jurisdiction. On April 2, 2008 plaintiff moved to dismiss his mail fraud, wire fraud and conspiracy to commit mail fraud claims against all defendants in Case Nos. C 08-01421 MHP, C 08-01336 MHP, C 08-01337 MHP. The same day plaintiff also moved to dismiss his ADA claims against Aramark and all other defendants in Case No. C 08-00733 MHP. The pro se plaintiff has stated that he only seeks redress under state laws. Consequently, the court will allow plaintiff to dismiss all of his federal law claims.1 Although the court has "the power / Re: Motion to Remand; Motion to Dismiss; Motion to Disqualify

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

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to hear claims that would not be independently removable even after the basis for removal jurisdiction is dropped from the proceedings," Harrell v. 20th Century Ins. Co., 934 F.2d 203, 205 (9th Cir. 1991) (internal quotation omitted), it is "generally within a district court's discretion to either retain jurisdiction to adjudicate the pendent state claims or to remand them to state court," id. The Ninth Circuit has stated "that it is generally preferable for a district court to remand remaining pendent claims to state court . . . ." Id. Exercising its discretion at the beginning stage of this litigation, the court remands all four actions captioned above back to the Superior Court since no showing of gamesmanship or forum-shopping has been made. Indeed, the pro se plaintiff states that had he known that alleging federal law violations in his complaint would make it removable, he would not have alleged the same. Based on the foregoing, plaintiff's motion to remand is GRANTED with respect to all four actions. Due to the court's decision, plaintiff's motion to disqualify counsel is DENIED as moot. Plaintiff may re-file the motion in state court. Similarly, defendants Morgan, Lewis, & Bockius LLP and Eric Meckley's motion to dismiss plaintiff's complaint under the Federal Rule of Civil Procedure 12(b)(6) is also DENIED as moot. Accordingly, the Clerk of Court shall file this order in all four of the above-numbered cases and transmit forthwith a certified copy of this order to the Clerk of the Superior Court for the County of San Francisco.

United States District Court

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IT IS SO ORDERED.

Dated: April 30, 2008 MARILYN HALL PATEL United States District Court Judge Northern District of California

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ENDNOTES 1. Plaintiff's invocation of 28 U.S.C. section 1343 is of no consequence since that jurisdictional statute does not provide a basis for removability without any alleged violations of federal law.

United States District Court

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For the Northern District of California

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

MARK A. FOSTER, Plaintiff, v. ARAMARK SPORTS & ENTERTAINMENT et al, Defendant. /

Case Number: CV08-00733 MHP CV08-01366 MHP CV08-01337 MHP CV08-01421 MHP CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on April 30, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Eric Meckley Morgan, Lewis & Bockius LLP Spear Street Tower, One Market Street San Francisco, CA 94105 Julia Ann Molander Sedgwick, Detert, Moran & Arnold LLP One Market Plaza Steuart Tower, 8th Floor San Francisco, CA 94105 Mark Antoine Foster 725 Ellis Street, #408 San Francisco, CA 94109 Dated: April 30, 2008 Richard W. Wieking, Clerk By: Frank Justiliano, Deputy Clerk