Federal Home Loan Mortgage Corporation v. Gallardo
Filing
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SCHEDULING ORDER, signed by Judge Oliver W. Wanger on 6/15/2011. (Motion to Remand Filing Deadline: 6/17/2011, Motion to Remand Hearing set for 7/18/2011 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger.) (Gaumnitz, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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FEDERAL HOME LOAN MORTGAGE
CORPORATION,
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Plaintiff,
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v.
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JULIAN GALLARDO,
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Defendant.
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1:10-cv-2337 OWW DLB
SCHEDULING CONFERENCE ORDER
Motion to Remand Filing
Deadline: 6/17/11
Motion to Remand Hearing
Date: 7/18/11 10:00 Ctrm. 3
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I.
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June 15, 2011.
II.
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Date of Scheduling Conference.
Appearances Of Counsel.
Pite Duncan, LLP by Jason W. Short, Esq., appeared on behalf
of Plaintiff.
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Defendant has not participated in any joint Scheduling
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Conference statement efforts.
Defendant Julian Gallardo
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stipulated to judgment in a prior State Court unlawful detainer
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proceeding in this case.
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this Court and Mr. Gallardo has not responded or otherwise
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communicated with Plaintiff’s counsel.
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///
The case was subsequently removed to
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III.
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Summary of Pleadings.
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Plaintiff purchased the real property located at 2409
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Park Brae Way, Modesto, CA 95358 (hereinafter the “Subject
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Property”) at trustee’s sale on June 8, 2010.
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was duly perfected by the recording of the Trustee’s Deed Upon
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Sale.
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15, 2010.
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and Plaintiff filed the instant action for unlawful detainer on
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or about August 10, 2010.
Plaintiff’s title
Defendant was served with Written Notice to Vacate on July
Defendant failed to comply with the Notice to Vacate
At trial on November 15, 2010, the
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parties stipulated to Judgment whereby Defendant admitted that
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Plaintiff was entitled to possession, but Plaintiff would not
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seek to enforce the Writ of Possession Prior to December 5, 2010.
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2.
Defendant failed to vacate the Subject Property by
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December 5, 2010.
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of the unlawful detainer case to Federal Court on December 15,
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2010 and filed a Chapter 13 Bankruptcy Petition on December 17,
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2010 in the Eastern District of California, designated as case
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number 10-94880.
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the Automatic Stay on February 25, 2011.
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Stanislaus County Sheriff’s Department executed Plaintiff’s Writ
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of Possession and placed Plaintiff in peaceful possession of the
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Subject Property.
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3.
Instead, Defendant filed a Notice of Removal
Plaintiff sought, and was granted, relief from
On March 2, 2011, the
Plaintiff contends that the removal of the instant case
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to Federal Court was improper because removal cannot be
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accomplished after the Court, having jurisdiction over the claims
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to be removed, has made its findings of fact and conclusions of
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law.
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remove a case from a state court to a federal court after the
(1 Norton Bankr. L. & Prac. 3d § 7:1).
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Defendants may not
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state court has entered a final judgment that terminates the
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litigation.
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Moreover, this case was not properly removed as neither federal
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question nor diversity jurisdiction exists.
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IV.
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(14B Fed. Prac. & Proc. Juris. § 3721 (4th ed.)).
Orders Re Amendments To Pleadings.
1.
Plaintiff does not propose any further amendments to
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any pleadings.
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V.
Factual Summary.
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A.
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Proceedings.
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1.
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B.
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See paragraph 1 in the Summary of Pleadings
section above.
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Admitted Facts Which Are Deemed Proven Without Further
Contested Facts.
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VI.
None.
Legal Issues.
A.
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Contested.
1.
Jurisdiction is disputed.
Plaintiff contends
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the Court does not have jurisdiction under 28 U.S.C. §§ 1531 or
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1441 because the amount in controversy does not exceed $75,000
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and the complaint is based exclusively on Cal. Code Proc.
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§§ 1161(a) and 1174(b).
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2.
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No basis for Federal jurisdiction exists and
therefore venue is not proper.
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3.
Whether this case should be remanded to State
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Court it having been finally adjudicated by a judgment entered
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December 10, 2010.
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VII. Consent to Magistrate Judge Jurisdiction.
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1.
Plaintiff has consented to transfer the case to the
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Magistrate Judge for all purposes, including trial.
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VIII.
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1.
Corporate Identification Statement.
Any nongovernmental corporate party to any action in
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this court shall file a statement identifying all its parent
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corporations and listing any entity that owns 10% or more of the
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party's equity securities.
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its initial pleading filed in this court and shall supplement the
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statement within a reasonable time of any change in the
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information.
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IX.
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Discovery Plan and Cut-Off Date.
1.
Plaintiff will file a motion for remand on or before
June 17, 2011.
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A party shall file the statement with
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That motion shall be heard July 18, 2011 at 10:00 a.m.
in Courtroom 3.
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3.
It is anticipated that this case will be resolved by
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motion and therefore no other matters need be considered in this
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Scheduling Order at this time.
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X.
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Motions - Hard Copy.
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The parties shall submit one (1) courtesy paper copy to
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the Court of any motions filed.
Exhibits shall be marked with
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protruding numbered or lettered tabs so that the Court can easily
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identify such exhibits.
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IT IS SO ORDERED.
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Dated:
June 15, 2011
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/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE
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