Clements v. Ivory

Background

George Bernard Clements, Jr. moved without opposition to remand the case to state court. He argued that Milous James Ivory’s removal was untimely and that the complaint did not present a federal question. Ivory was the defendant who removed the case and did not respond to the motion.

The opinion states that Ivory answered the complaint on April 4, 2022, meaning he had been served by that date. Ivory filed his notice of removal on October 12, 2023—more than 18 months later.

Court’s Analysis

The court held that the removal was untimely under the 30-day deadline in 28 U.S.C. § 1446(b)(1). Because Clements timely challenged the removal, the court concluded that the case had to be sent back to state court.

The court separately concluded that it lacked federal-question jurisdiction. The complaint asserted claims for fraud, intentional and negligent misrepresentation, unjust enrichment, quiet title, slander of title, and negligence. The court found that nothing on the face of the complaint showed a claim arising under the Constitution, federal laws, or treaties. Ivory’s references to the Fifth and Fourteenth Amendments did not establish federal-question jurisdiction because those amendments were not raised by the complaint. The court also noted that the complaint’s references to a federal immigration law were supposed to be removed and did not raise immigration issues.

Disposition

Judge Araceli Martinez-Olguin granted Clements’s motion to remand. The court stated that it did not have subject-matter jurisdiction, directed the clerk to transmit the file to the Superior Court of the State of California, County of San Francisco, and ordered the federal case closed.