-GGH (PS) CitiMortgage Inc. v. McCampbell, No. 2:2011cv01200 - Document 8 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS, recommending that this action be remanded to Placer County Superior Court; Clerk be directed to serve certified copy of Order to Placer County Superior Court and to close this case, signed by Magistrate Judge Gregory G. Hollows on 11/10/2011. These F/Rs are referred to Judge Kimberly J. Mueller. Within 14 days after being served with these F/Rs, any party may file written Objections with Court and serve a copy on all parties. (Marciel, M)

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-GGH (PS) CitiMortgage Inc. v. McCampbell Doc. 8 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 CITIMORTGAGE INC., 10 11 12 Plaintiff, CIV. NO. S-11-1200 KJM GGH PS vs. GARY ROBERT MCCAMPBELL, FINDINGS AND RECOMMENDATIONS 13 Defendant. 14 / 15 This action was referred to the undersigned pursuant to E.D. Cal. L.R. 302(c)(21). 16 It was removed from state court on May 4, 2011, and has remained inactive since. Nevertheless, 17 a district court has “a duty to establish subject matter jurisdiction over [a] removed action sua 18 sponte, whether the parties raised the issue or not.” United Investors Life Ins. Co. v. Waddell & 19 Reed Inc., 360 F.3d 960, 966 (9th Cir. 2004); see also Kelton Arms Condominium Assoc., Inc. v. 20 Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003). Having reviewed the notice of 21 removal, the court finds that the action should be remanded to state court due to lack of subject 22 matter jurisdiction. 23 Removal jurisdiction statutes are strictly construed against removal. See Libhart 24 v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). “Federal jurisdiction must be 25 rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, 980 26 F.2d 564, 566 (9th Cir. 1992). “The burden of establishing federal jurisdiction falls on the party 1 Dockets.Justia.com 1 2 invoking removal.” Harris v. Provident Life and Accident Ins. Co., 26 F.3d 930 (9th Cir. 1994). A plaintiff may bring suit in federal court if his claim “arises under” federal law. 3 28 U.S.C. § 1331. In that situation, the court has original jurisdiction. A state court defendant 4 cannot invoke the federal court’s original jurisdiction. But he may in some instances invoke the 5 court’s removal jurisdiction. The requirements to invoke removal jurisdiction are often identical 6 to those for invoking its original jurisdiction. The requirements for both relate to the same end, 7 that is, federal jurisdiction. 8 Removal of a state court action is proper only if it originally could have been filed 9 in federal court. 28 U.S.C. § 1441. “[F]ederal courts have jurisdiction to hear, originally or by 10 removal, only those cases in which a well-pleaded complaint establishes either that federal law 11 creates the cause of action, or that the plaintiff’s right to relief necessarily depends on resolution 12 of a substantial question of federal law.” Franchise Tax Board v. Construction Laborers 13 Vacation Trust, 463 U.S. 1, 27-28, 103 S. Ct. 2841, 2855-56 (1983). Mere reference to federal 14 law is insufficient to permit removal. See Smith v. Industrial Valley Title Ins. Co., 957 F.2d 90, 15 93 (3d Cir. 1992). Also, defenses and counterclaims cannot provide a sufficient basis to remove 16 an action to federal court. See Berg v. Leason, 32 F.3d 422, 426 (9th Cir. 1994); FIA Card Servs. 17 v. McComas, 2010 WL 4974113 (S.D. Cal. Dec. 2, 2010) (remanding action removed by 18 defendant on the basis that defendant’s counterclaim raised a federal question). 19 Here, the exhibits attached to the removal petition establish that the state court 20 action is nothing more than a simple unlawful detainer action, and is titled as such. (See Dkt. 21 No. 1, at pp. 51-54.) This court has no jurisdiction over unlawful detainer actions which are 22 strictly within the province of the state court. Defendant’s removal petition also includes a 23 “complaint” asserting various claims against plaintiff and others, including claims under federal 24 statutes such as the Real Estate Settlement Procedures Act, the Truth in Lending Act, and the 25 Fair Debt Collection Practices Act, among others, apparently challenging the foreclosure 26 proceedings related to his property. However, as discussed above, these counterclaims cannot 2 1 provide a sufficient basis to remove the action to federal court. Based on the aforementioned 2 analysis, the court finds that remand is appropriate, because there is no subject matter 3 jurisdiction. 4 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 5 1. The action be remanded to the Placer County Superior Court; 6 2. The Clerk be directed to serve a certified copy of this order on the Clerk of the 7 Placer County Superior Court, and reference the state case number (MCV 45346) in the proof of 8 service; and 9 3. The Clerk be directed to close this case. 10 These findings and recommendations are submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 12 fourteen (14) days after being served with these findings and recommendations, any party may 13 file written objections with the court and serve a copy on all parties. Such a document should be 14 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the 15 objections shall be served and filed within seven (7) days after service of the objections. The 16 parties are advised that failure to file objections within the specified time may waive the right to 17 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 DATED: November 10, 2011 19 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 20 GGH/wvr 21 McCampbell.1200.fr.remand.wpd 22 23 24 25 26 3

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