1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BATHSHEBA SHUNQUITA QUEEN, Case No. 24-cv-02161-SVK

8 Plaintiff, ORDER DISMISSING ACTION 9 v.

10 LESHAWN MOONEY, 11 Defendant.

12 The United States, as an interested non-party, informed the Court that it may lack subject- 13 matter jurisdiction over this action. See

; Dkt. 21.1 After reviewing the record and 14 the law, the Court concurs in that assessment. 15 Plaintiff commenced this action in the Superior Court for the County of Santa Clara on 16 March 6, 2024. See Dkt. 1-1 at ECF Page 2. Defendant subsequently removed the action to this 17 Court on April 11, 2024. See Dkt. 1. It turns out, however, that before Defendant removed the 18 action on April 11, Plaintiff requested that the Superior Court dismiss the action on April 10. See 19 Dkt. 21-1 at ECF Page 16 (request for dismissal dated April 9 and filed on April 10); see also Dkt. 20 24 at ECF Page 3 (Plaintiff confirming that she requested dismissal of state-court action and that 21 she “received an email the morning after [she] requested a voluntary dismissal . . . informing [her] 22 that the case had been removed to federal court”). The Clerk of that court granted the request and 23

24 1 The Court offered self-represented Plaintiff an opportunity to file a response to the United States’ 25 statement by August 26, 2024. See Dkt. 22. Plaintiff filed her response on August 27, 2024, along with a request to extend her time to file a response by 48 hours. See Dkts. 24-26. Given the 26 length of Plaintiff’s response, the Court interprets this request as seeking a retroactive extension to excuse Plaintiff’s late filing and not as seeking permission to file a further response. The Court 27 therefore accepts Plaintiff’s late-filed response but will not permit Plaintiff to file a further 1 dismissed the action on April 10. See Dkt. 21-1 at ECF Page 16. Thus, at the time of removal on 2 April 11, there was no pending state-court action to remove. 3 That proves fatal to this action. “It would seem obvious that to remove an action to the 4 federal courts from a state court, it must first be pending in the state court.” Ristuccia v. Adams, 5

(9th Cir. 1969). Accordingly, once a state court dismisses an action, a 6 federal court will lack subject-matter jurisdiction if a defendant attempts to subsequently remove 7 that action. Cf. Casola v. Dexcom, Inc.,

(9th Cir. 2024) (where defendant 8 removed action to federal court before state court processed and endorsed electronically filed 9 complaint, federal court lacked jurisdiction at time of removal “because there were no cases then 10 pending”). The Court must therefore dismiss the action for lack of subject-matter jurisdiction. 11 See, e.g., Carnero v. Cargill Meat Sols. Corp., No. 22-cv-00354-DAD,

, at *2 12 (E.D. Cal. Apr. 8, 2022) (dismissing action for lack of subject-matter jurisdiction because 13 defendant removed action from state court after plaintiff filed a request for dismissal in that court); 14 Welch v. Air & Liquid Sys. Corp., No. 21-cv-00904-MJP,

, at *2-3 (W.D. 15 Wash. Aug. 9, 2021) (removal improper because plaintiffs moved to voluntarily dismiss removing 16 defendant from state-court action before that defendant filed notice of removal, thereby depriving 17 federal court of subject-matter jurisdiction). 18 In Plaintiff’s response, she states that she reasonably believed that Defendant received 19 notice of her request for voluntary dismissal, that she herself was confused as to how the action 20 could proceed in federal court after she requested dismissal and that an attorney informed her that 21 the action had not been dismissed. See Dkt. 24 at ECF Pages 5-6, 9. The Court sympathizes with 22 Plaintiff and does not fault her for proceeding with this action after she attempted to dismiss it. 23 Her response demonstrates sufficient diligence, particularly for a self-represented litigant, in 24 attempting to wade through a procedural entanglement. But sometimes mistakes happen, and no 25 one is to blame. This is one of those times. 26 /// 27 /// ] Accordingly, the Court DISMISSES this action for lack of subject-matter jurisdiction. 2 SO ORDERED. 3 Dated: August 27, 2024 4 5 Soe yer Kul SUSAN VAN KEULEN 6 United States Magistrate Judge 7 8 9 10 1] 12

16 Z 18 19 20 21 22 23 24 25 26 27 28