Federal Home Loan Mortgage Corporation v. Searcy et al
Filing
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ORDER REMANDING CASE to San Joaquin Superior Court signed by District Judge Kimberly J. Mueller on 06/29/11. Copy of remand order sent to other court. CASE CLOSED (Benson, A.)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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FEDERAL HOME LOAN MORTGAGE
CORPORATION,
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Plaintiff,
No. CIV S-11-1681 KJM KJN
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vs.
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JUAN M. SEARCY; et al.,
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Defendants.
ORDER
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Defendants removed the above-captioned matter to this court on June 21, 2011.
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(ECF 2.) Plaintiff then filed an ex parte application for an order shortening time for hearing on
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its motion to remand. (ECF 5.) For the following reasons, this case is hereby REMANDED and
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plaintiff’s application is DENIED as moot.
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“[A]ny civil action brought in a State court of which the district courts of the
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United States have original jurisdiction [] may be removed by the defendant . . . to the district
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court . . . .” 28 U.S.C. § 1441(a). District courts have original jurisdiction in two situations:
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1) federal question jurisdiction over “civil actions arising under the Constitution, laws, or treaties
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of the United States;” and 2) diversity jurisdiction where “the matter in controversy exceeds the
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sum or value of $75,000, exclusive of interest and costs” and there is complete diversity between
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the parties. 28 U.S.C. §§ 1331, 1332(a).
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The Ninth Circuit “strictly construe[s] the removal statute against removal
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jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis, 863
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F.2d 662, 663 (9th Cir. 1988); Takeda v. Northwestern Nat’l Life Ins. Co., 765 F.2d 815, 818
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(9th Cir. 1985)). There is a “strong presumption” against removal jurisdiction, which “means
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that the defendant always has the burden of establishing that removal is proper.” Gaus, 980 F.2d
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at 566. “If at any time before final judgment it appears that the district court lacks subject matter
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jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). District courts have the duty of
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determining whether they have jurisdiction, even if the parties do not raise the question. See
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United Investors Life Ins. Co. v. Waddell & Reed, Inc., 360 F.3d 960, 966-67 (9th Cir. 2004); see
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also FED. R. CIV. P. 12(h)(3).
Plaintiff’s state court complaint, brought in San Joaquin Superior Court on May
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19, 2011, alleges only a state law cause of action for unlawful detainer. (Not. of Removal, Ex. 1,
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ECF 2.) However, defendants removed this action purportedly based upon federal question
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jurisdiction. (Not. of Removal at 3.) Defendants’ reasoning is convoluted and unconvincing.
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Defendants claim that because 28 U.S.C. § 1331 provides district courts with jurisdiction over
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civil actions arising under the Constitution, laws, and treaties of the United States and 28 U.S.C.
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§ 1441(a) provides that defendants may remove civil suits to district courts with original
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jurisdiction, as defendants in a civil action “deemed to arise under the laws of the United States”
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and over which the district court has original jurisdiction (see 12 U.S.C. § 1452(f)(2)), they
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properly removed plaintiff’s action for unlawful detainer. (Not. of Removal at 3; Antognini
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Decl. ¶ 6, ECF 7.) Defendants ignore the other operative clause of 12 U.S.C. § 1452(f), which
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states that “any civil or other action . . . to which the Corporation is a party may at any time
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before the trial thereof be removed by the Corporation . . . .” 12 U.S.C. § 1452(f)(3). Thus, only
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plaintiff – the Corporation – has the authority to remove a civil case that otherwise does not
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invoke either federal question or diversity jurisdiction; defendants may not do so. See Mendrala
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v. Crown Mortg. Co., 955 F.2d 1132, 1136 n.5 (7th Cir. 1992) (“In the Senate Report, the only
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specific reference to what is now 12 U.S.C. § 1452(f) states in full: ‘[The section] gives the
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Corporation clear authority to bring suit in Federal court and to remove to such court any judicial
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proceedings in which it is involved, and prohibits the issuance of any attachment or execution
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against the corporation or its property before final judgment’” (internal citation omitted)). This
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court is without jurisdiction to hear this case.
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For the foregoing reasons, the court hereby REMANDS the above-captioned
matter. This case is CLOSED.
IT IS SO ORDERED.
DATED: June 29, 2011.
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UNITED STATES DISTRICT JUDGE
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