-JLT Federal Home Loan Mortgage Corporation v. Vargas, No. 1:2011cv01364 - Document 11 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS To Remand signed by Magistrate Judge Jennifer L. Thurston on 10/3/2011. Objections to F&R due by 10/17/2011. (Leon-Guerrero, A)
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-JLT Federal Home Loan Mortgage Corporation v. Vargas Doc. 11 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 FEDERAL HOME LOAN MORTGAGE CORPORATION, ) ) ) Plaintiff, ) v. ) ) ) SUZANNE VARGAS and ) DOES 1-10, inclusive, ) ) Defendants. ) _______________________________________ ) Case No.: 1:11-cv-01364 LJO JLT FINDINGS AND RECOMMENDATION TO REMAND THE MATTER TO THE KERN COUNTY SUPERIOR COURT AND TO DISMISS THE MATTER 17 Nancy Finzel1, erroneously named as Suzanne Vargas, seeks removal of an unlawful detainer 18 19 action from the Kern County Superior Court. (Doc. 1). Currently before the Court is a motion to 20 remand the action filed by plaintiff Federal Home Loan Mortgage Corporation (“Plaintiff”). (Doc. 21 5). Defendants did not file an opposition to this motion nor did she appear at the hearing. For the 22 following reasons, the Court recommends the motion to remand be GRANTED. 23 /// 24 25 1 26 27 28 Defendant Nancy Finzel asserts she was “erroneously sued as Suzanne Vargas” (Doc. 1at 1), though Plaintiff asserts Ms. Finzel “also referred to herself as Suzanne Vargas.” (Doc. 5 at 1). At the hearing, Plaintiff’s counsel reported that when service of the eviction documents was accomplished, the person living in the home told the process server that her name was “Suzanne Vargas.” Notably, the demurrer and the answer filed in the state court action was by and on behalf of, “Suzanne Vargas.” (Doc. 1 at 2, 66-70; Doc. 5-6) Because Finzel admits she is the proper party in this case, for purposes of this motion, the Court will assume Ms. Finzel was erroneously sued as “Suzanne Vargas.” 1 Dockets.Justia.com 1 2 I. Factual and Procedural History Plaintiff commenced this action by filing a “Complaint for Unlawful Detainer Following 3 Foreclosure Sale CCP Section 1161a” in Kern County Superior Court against Suzanne Vargas and 4 Does 1-10, inclusive, on May 24, 2011, in Case No. S-1500-CL-259616.2 (Doc. 5-2, Ex. 3). In the 5 underlying state court complaint, Plaintiff alleges the company is the owner of property located at 6 2809 Agate Street, Bakersfield, California, and is entitled to that property. (Doc. 1 at 13). Nancy 7 Finzel “and ALL PERSONS IN POSSESSION” of the premises were served with a notice to quit the 8 property on February 15, 2011. Id. at 15. However, the occupants failed to leave the property. Id. 9 Plaintiff sought possession of the property and rental value in the amount of $30.00 per day 10 11 beginning May 23, 2011. Id. at 15-16. On July 5, 2011, defendant Suzanne Vargas filed a demurrer in the state court and when it 12 was overruled, she filed an answer, in which she generally denied each statement of the complaint. 13 (Doc. 1 at 2, 66-70; Doc. 5-4, Ex. 6). In addition, Ms. Vargas requested that the case be dismissed 14 “based on wrongful foreclosure.” Id. 15 Ms. Finzel filed a Notice of Removal on August 16, 2011, thereby commencing the matter in 16 this Court. (Doc. 1). According to Ms. Finzel, “Defendant filed a demurrer to the Complaint based 17 on a defective notice, i.e., the Notice to Occupants to Vacate Premises, failed to comply with The 18 Protecting Tenants at Foreclosure Act.” Id. at 2. Ms. Finzel asserts the demurrer “depend[s] on the 19 determination of Defendants’ rights and Plaintiff’s duties under federal law.” Id. at 3. 20 II. Removal Jurisdiction 21 Pursuant to 28 U.S.C. § 1441(a), a defendant has the right to remove a matter to federal court 22 where the district court would have original jurisdiction. Caterpillar, Inc. v. Williams, 482 U.S. 286, 23 392 (1987). Specifically, 24 25 26 27 28 2 The Court may take notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b). Plaintiff requests the Court take judicial notice of documents including “records of the Superior Court of California Kern County, Metropolitan Division” related to Case No. S-1500-CL-259616, including the summons and complaint, proofs of service, and Defendant’s answer. In addition, Plaintiff requests judicial notice of “records of the County Recorder’s Office of Kern County,” including a deed upon sale and deed of trust. Because the accuracy of these documents cannot reasonably be questioned, Plaintiff’s request for judicial notice is GRANTED. 2 1 2 Except otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending. 3 4 28 U.S.C. § 1441(a). District courts have “original jurisdiction of all civil actions arising under the 5 Constitution, laws, or treaties of the United States.” Id. at § 1331. 6 A party seeking removal must file a notice of removal of a civil action within thirty days of 7 receipt of a copy of the initial pleading. Id. at § 1446(b). Removal statutes are to be strictly 8 construed, and any doubts are to be resolved in favor of state court jurisdiction and remand. See 9 Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). The party seeking removal bears the burden of 10 proving its propriety. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996); Abrego v. Dow Chem. 11 Co., 443 F.3d 676, 683-85 (9th Cir. 2006); see also Calif. ex. rel. Lockyer v. Dynegy, Inc., 2274 F.3d 12 831, 838 (“the burden of establishing federal jurisdiction falls to the party invoking the statute”). 13 The Court may remand an action to state court for lack of subject matter jurisdiction or for 14 defect in the removal procedure. 28 U.S.C. § 1447(c). A party opposing removal on the basis of a 15 procedural defect must make a motion to remand within thirty days of the filing of the notice of 16 removal. Id. 17 III. Discussion and Analysis 18 As the party seeking removal, Ms. Finzel “bears the burden of actually proving the facts to 19 support jurisdiction, including the jurisdictional amount.” Sanchez v. Monumental Life Ins., 102 20 F.3d 398, 403 (9th Cir. 1996), citing Gaus, 980 F.2d at 677-67. Ms. Finzel asserts the Court has 21 subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1441(a). (Doc. 1 at 2). Specifically, 22 she asserts the Complaint presents federal questions and “could originally could have been filed in 23 this Court.” Id. 24 A. Subject Matter Jurisdiction 25 The determination of federal question jurisdiction “is governed by the ‘well-pleaded 26 complaint rule,’ which provides that federal jurisdiction exists only when a federal question is 27 presented on the face of plaintiff’s properly pleaded complaint.” Caterpillar, 482 U.S. at 392). 28 Therefore, the complaint must establish “either that [1] federal law creates the cause of action or that 3 1 [2] the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal 2 law.” Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage Leasehold & Easement, 3 524 F.3d 1090, 1100 (9th Cir. 2008), quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 4 463 U.S. 1, 27-28 (1983). 5 The complaint filed in state court stated a single cause of action for unlawful detainer. 6 Importantly, an unlawful detainer action does not arise under federal law, but arises instead under 7 state law. Deutsche Bank Nat’l Trust Co. v. Jora, 2010 U.S. Dist. LEXIS 105453, at *4 (E.D. Cal. 8 Oct. 1, 2010). A plaintiff bringing an unlawful detainer claim is entitled to judgment upon 9 establishing that the property at issue was sold in compliance with California Civil Code §2924 and 10 that the requisite three-day notice to quit to defendant was served as required in California Code of 11 Civil Procedure §1161. See Litton Loan Servicing, L.P. v. Villegas, 2011 U.S. Dist. LEXIS 8018 at 12 *5 (N.D. Cal. Jan. 21, 2011) (citing Evans v. Superior Court, 67 Cal. App. 3d 162, 168 (1977). 13 Thus, the unlawful detainer claim asserted by Plaintiff does not raise a federal question, and the 14 Court lacks subject matter jurisdiction. See Galileo Fin. v. Miin Sun Park, 2009 U.S. Dist. LEXIS 15 94996, at *1-2 (C.D. Cal. Sept. 24, 2009) (“Here, the complaint only asserts a claim for unlawful 16 detainer, a cause of action that is purely a matter of state law. Thus, from the face of the complaint, 17 it is clear that no basis for federal question jurisdiction exists.”) 18 B. Diversity Jurisdiction 19 For the Court to have diversity jurisdiction, the amount in controversy must exceed the sum 20 or value of $75,000. 28 U.S.C. § 1332(a). In an unlawful detainer action, “the right to possession 21 alone [is] involved– not title to the property.” Litton, 2011 U.S. Dist. LEXIS 8018 at *6-7. In the 22 complaint, Plaintiff seeks less than $10,000. (Doc. 1 at 13). Therefore, the amount in controversy is 23 insufficient to establish diversity jurisdiction. 24 IV. Findings and Recommendations 25 Ms. Finzel’s removal failed to establish that the Court has subject matter jurisdiction. 26 Though Ms. Finzel asserted Plaintiff’s complaint raised federal questions, the single cause of action 27 arises under state law. 28 Accordingly, the Court hereby RECOMMENDS that: 4 1 1. Plaintiff’s motion to remand be GRANTED; 2 2. The matter be REMANDED to the Kern County Superior Court; and 3 3. Because the order remanding this matter to state court concludes this case, the Clerk 4 of the Court be directed to close this matter. 5 These Findings and Recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the 7 Local Rules of Practice for the United States District Court, Eastern District of California. Within 8 fourteen days after being served with these findings and recommendations, any party may file 9 written objections with the court. Such a document should be captioned “Objections to Magistrate 10 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 11 within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 12 951 F.2d 1153 (9th Cir. 1991). 13 14 IT IS SO ORDERED. 15 Dated: October 3, 2011 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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