(PS) Flagstar Bank FSB v. Peterson et al, No. 2:2012cv01897 - Document 10 (E.D. Cal. 2012)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 12/3/2012 RECOMMENDING that Plaintiffs 7 motion to remand be granted; and this action be remanded to the Sacramento Superior Court; Referred to Judge Kimberly J. Mueller; Objections due within 14 days after being served to these F & R's. (Reader, L)

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(PS) Flagstar Bank FSB v. Peterson et al Doc. 10 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 11 FLAGSTAR BANK, FSB, Plaintiff, 12 13 14 15 16 17 No. CIV 2:12-cv-1897-KJM-AC (PS) vs. MATTHEW PETERSON, et al., Defendants. FINDINGS & RECOMMENDATIONS / Plaintiff Flagstar Bank, FSB commenced an unlawful detainer action in 18 Sacramento County Superior Court on July 2, 2012 concerning real property located in Citrus 19 Heights, CA 95810. Notice of Removal (“NOR”), Attach. Defendants removed this action on 20 July 19, 2012, purportedly on the basis of federal question jurisdiction. Pending before the court 21 is plaintiff’s September 21, 2012 motion to remand. Defendants have not filed an opposition. 22 When reviewing a notice of removal, “it is to be presumed that a cause lies 23 outside the limited jurisdiction of the federal courts and the burden of establishing the contrary 24 rests upon the party asserting jurisdiction.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 25 (9th Cir. 2009) (quoting Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) 26 (internal quotation marks omitted)). “Federal jurisdiction must be rejected if there is any doubt 1 Dockets.Justia.com 1 as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 2 1992). “If at any time before final judgment it appears that the district court lacks subject matter 3 jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). 4 The propriety of removal requires the consideration of whether the district court 5 has original jurisdiction of the action; i.e., whether the case could have originally been filed in 6 federal court based on a federal question, diversity of citizenship, or another statutory grant of 7 jurisdiction. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). If the case is within 8 the original jurisdiction of the district court, removal is proper so long as the defendant complied 9 with the procedural requirements set forth in 28 U.S.C. § 1446. If the case is not within the 10 original jurisdiction of the district court, removal is improper. The absence of subject matter 11 jurisdiction is not waivable by the parties. See Am. Fire & Cas. Co. v. Finn, 341 U.S. 6 (1951). 12 With their Notice of Removal, defendants provide a copy of the complaint filed in 13 Sacramento County Superior Court. The complaint contains a single claim for unlawful 14 detainer. In defendants’ removal notice, they assert that this court has original jurisdiction over 15 this case pursuant to 28 U.S.C. § 1331 because this case involves violations of federal law, 16 including the Fair Debt Collection Practices Act, 12 U.S.C. § 2601 et seq., and the Truth in 17 Lending Act, 15 U.S.C. § 1601 et seq. See NOR at 2. Plaintiff’s complaint for unlawful 18 detainer, however, does not state claims under any federal law. Rather, defendants appear to 19 assert these federal statutes are at issue by virtue of defendants’ defense to the action. 20 Removal, however, cannot be based on a defense, counterclaim, cross-claim, or 21 third-party claim raising a federal question, whether filed in state or federal court. See Vaden v. 22 Discover Bank, 556 U.S. 49 (2009); Hunter, 582 F.3d at 1042-43; Metro Ford Truck Sales, Inc. 23 v. Ford Motor Co., 145 F.3d 320, 327 (5th Cir. 1998); Preciado v. Ocwen Loan Servicing, 2011 24 WL 977819, at *1 (C.D. Cal. Mar. 18, 2011); Fed. Nat'l Mortg. Ass'n. v. Bridgeman, 2010 WL 25 5330499, at *4 (E.D. Cal. Dec. 20, 2010). The complaint indicates that the only cause of action 26 is one for unlawful detainer, which arises under state law and not under federal law. Thus, this 2 1 action does not arise under federal law, and jurisdiction under 28 U.S.C. § 1331 does not exist. 2 Furthermore, absent original jurisdiction, the court may not exercise supplemental jurisdiction 3 over any remaining state law claims. See 28 U.S.C. § 1367. 4 Accordingly, IT IS HEREBY RECOMMENDED that: 5 1. Plaintiff’s motion to remand be granted; and 6 2. This action be remanded to the Sacramento County Superior Court. 7 These findings and recommendations are submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 9 days after being served with these findings and recommendations, defendant may file written 10 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 11 Findings and Recommendations.” Any response to the objections shall be filed and served 12 within fourteen days after service of the objections. Defendant is advised that failure to file 13 objections within the specified time may waive the right to appeal the District Court’s order. 14 DATED: December 3, 2012. ___/s/_______________________________ ALLISON CLAIRE UNITED STATE MAGISTRATE JUDGE 15 16 /mb;flag1897.remand 17 18 19 20 21 22 23 24 25 26 3

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