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Commonwealtha v. Yun

United States District Court, M.D. Pennsylvania

February 13, 2018

COMMONWEALTH OF PENNSYLVANIA,
v.
GLORIA SUN JUNG YUN, Defendant.

          MARIANI, J.

          REPORT AND RECOMMENDATION

          JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court on a pro se notice of removal. The defendant, Gloria Sun Jung Yun, is awaiting disposition of summary proceedings before a state magisterial district judge in the matter of Commonwealth v. Yun, Docket No. MJ-43201-TR-0000283-2018 (Monroe Cty. Magis. Dist. Ct.).

         Yun has filed a pro se “Notice of Removal Per 28 USC § 455, ” which we liberally construe as a notice of removal of criminal prosecution pursuant to 28 U.S.C. § 1455.[1] See generally Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-46 (3d Cir. 2013) (discussing a federal court's obligation to liberally construe the filings of pro se litigants). We have reviewed the notice pursuant to 28 U.S.C. § 1455(b)(4). For the reasons set forth below, we recommend that the matter be summarily remanded to the state magisterial district court for further proceedings.

         I. Background

         Based on the notice (Doc. 1), a copy of the traffic summons attached to the notice (Doc. 1, at 9), and the publicly available state court docket record, available at https://ujsportal.pacourts.us/DocketSheets/MDJ.aspx, it appears that Yun was issued a traffic citation on December 20, 2017, for violation of a Stroudsburg, Pennsylvania, borough ordinance that prohibits parking in a metered parking space after time on the meter has expired. See Stroudsburg Ordinance § 15-407 (adopted Nov. 10, 2015), available at https://ecode360.com/31335998. The citation indicates that the violation carries a fine of $50 plus costs or fees of $61.96, for a total due of $111.96.

         On or before January 31, 2018, Yun appeared before a state magisterial district judge and moved to dismiss the charge on jurisdictional grounds. [2] It is unclear from the record before us whether the motion was denied or remains pending, but a summary trial before the magisterial district judge is scheduled to take place on March 29, 2018. On January 31, 2018, Yun filed the instant notice of removal.

         II. Discussion

         Section 1455 sets out the procedure for removal of criminal prosecutions from state court. It provides as follows:

(a) Notice of removal.-A defendant or defendants desiring to remove any criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such prosecution is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
(b) Requirements.-(1) A notice of removal of a criminal prosecution shall be filed not later than 30 days after the arraignment in the State court, or at any time before trial, whichever is earlier, except that for good cause shown the United States district court may enter an order granting the defendant or defendants leave to file the notice at a later time.
(2) A notice of removal of a criminal prosecution shall include all grounds for such removal. A failure to state grounds that exist at the time of the filing of the notice shall constitute a waiver of such grounds, and a second notice may be filed only on grounds not existing at the time of the original notice. For good cause shown, the United States district court may grant relief from the limitations of this paragraph.
(3) The filing of a notice of removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the prosecution is first remanded.
(4) The United States district court in which such notice is filed shall examine the notice promptly. If it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, ...

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