(PS) United States of America v. Lopez, No. 2:2010cv02438 - Document 16 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 12/15/2010 RECOMMENDING that plaintiffs 4 motion to remand be granted and that this matter be remanded to the Superior Court of California, County of Sacramento, on the grounds that this court lacks federal subject matter jurisdiction over plaintiff's claims; Referred to Judge William B. Shubb; Objections due 14 days after being served with these F & R's. (Reader, L)
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(PS) United States of America v. Lopez Doc. 16 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 UNITED STATES OF AMERICA, 11 Plaintiff, 12 v. 13 No. 2:10-cv-02438 WBS KJN PS MARIA LOPEZ, 14 Defendant. 15 FINDINGS AND RECOMMENDATIONS / 16 Presently before the court is plaintiff’s motion to remand this unlawful detainer 17 action to the Superior Court of California for the County of Sacramento (“Superior Court”).1 18 (Dkt. No. 4.) The undersigned previously set a briefing schedule regarding plaintiff’s motion 19 (Dkt. Nos. 11, 13), and the parties have filed their respective briefs (Dkt. Nos. 14, 15). Because 20 oral argument would not materially aid in the resolution of the pending motion, this matter is 21 submitted on the briefs and record without a hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local 22 Rul 230(g). Having reviewed the briefs and record in this case, the undersigned recommends 23 that plaintiff’s motion to remand be granted and that this case be remanded to the Superior Court 24 25 1 This action proceeds before this court pursuant to Eastern District of California Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 26 1 Dockets.Justia.com 1 because this court lacks subject matter jurisdiction over plaintiff’s single claim for unlawful 2 detainer. 3 I. BACKGROUND 4 On May 11, 2010, plaintiff filed a Verified Complaint for Unlawful Detainer 5 (“Complaint”) in the Superior Court seeking to recover possession of the property at issue, which 6 is alleged to be situated in the County of Sacramento. (Compl. ¶ 2, attached to Notice of 7 Removal, Dkt. No. 1 at 12-15.) The Complaint alleges that plaintiff purchased the subject 8 property at a trustee’s sale that occurred in accordance with California state law, that plaintiff’s 9 title pursuant to that sale has been perfected, and that plaintiff is entitled to immediate possession 10 of the property. (Id. ¶¶ 4-5.) It further alleges that plaintiff provided defendant, who apparently 11 had rented and still occupies the property, with notice to vacate the premises and deliver 12 possession of the property within 90 days, and that defendant failed to vacate and deliver 13 possession. (Id. ¶¶ 6-7 & Ex. B.) Through this action, plaintiff seeks: (1) restitution and 14 possession of the subject property, and (2) damages at a rate of $30.00 per day from May 10, 15 2010, until the date of entry of judgment for each day that defendant remains in possession of the 16 property.2 (Compl. at 3.) 17 On August 12, 2010, defendant removed this matter to the United States District 18 Court for the Northern District of California, and that district court eventually transferred the 19 case to this district. (Dkt. Nos. 1, 5.) Defendant removed this case pursuant to 28 U.S.C. 20 § 1446(a), and asserted that this court has subject matter jurisdiction over plaintiff’s claims 21 pursuant to, in part, 28 U.S.C § 1331. (Notice of Removal at 1.) Specifically, defendant asserts 22 that this court has federal question jurisdiction based on the “Protecting Tenants at Foreclosure 23 Act of 2009,” and contends that plaintiff “failed to provide the defendant with a 90 day notice to 24 25 26 2 Plaintiff filed this action as a limited civil action in the Superior Court, and the caption of the Complaint states: “AMOUNT DEMANDED DOES NOT EXCEED $10,000.” (Compl. at 1.) 2 1 quit” that is required by that legislation. (See Notice of Removal at 2-3.) Defendant’s Notice of 2 Removal also asserts, in passing and without explanation, that “[t]his action is a civil action of 3 which this Court has original jurisdiction under 28 U.S.C. § 1332(c)(1).”3 (Notice of Removal 4 at 7.) The Notice of Removal contains no specific allegations in support of defendant’s claim 5 that diversity jurisdiction exists pursuant to 28 U.S.C. § 1332. 6 On August 24, 2010, while the case was still pending in the Northern District of 7 California, plaintiff filed and served on defendant a motion to remand this matter to the Superior 8 Court, which argues that defendant has not and cannot establish the existence of federal subject 9 matter jurisdiction. (See Dkt. No. 4.) That same day, United States Magistrate Judge Laurel 10 Beeler signed an order transferring plaintiff’s action to this court. (Dkt. No. 5.) Magistrate Judge 11 Beeler did not address defendant’s motion for an order of remand. 12 II. LEGAL STANDARDS 13 In relevant part, the federal removal statute provides: 14 (a) Except as 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 the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. . . . 15 16 17 (b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. 18 19 20 21 28 U.S.C. § 1441(a), (b). “The defendant bears the burden of establishing that removal is 22 proper.” Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th 23 3 24 25 26 Defendant also claims that “[t]his Court has supplemental jurisdiction over all other claims asserted by plaintiff in accordance with 28 U.S.C. § 1367(a).” (Notice of Removal at 7.) However, plaintiff’s Complaint states a single claim for unlawful detainer, and, thus, there are no “other claims” that would invoke the court’s supplemental jurisdiction. See Kelly v. Fleetwood Enters., Inc., 377 F.3d 1034, 1040 (9th Cir. 2004). Accordingly, this purported basis for subject matter jurisdiction fails and will not be addressed in any detail below. 3 1 Cir. 2009), cert. denied, 131 S. Ct. 65 (2010). “The removal statute is strictly construed against 2 removal jurisdiction,” id., and removal jurisdiction “‘must be rejected if there is any doubt as to 3 the right of removal in the first instance.’” Geographic Expeditions, Inc. v. Estate of Lhotka, 599 4 F.3d 1102, 1106 (9th Cir. 2010) (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) 5 (per curiam)). 6 III. DISCUSSION 7 As noted above, defendant removed this action to federal court on the basis of this 8 court’s federal question jurisdiction and diversity jurisdiction. For the reasons that follow, 9 neither of these is a proper basis for removal, and the undersigned concludes that this court lacks 10 subject matter jurisdiction over plaintiff’s claim.4 11 1. Removal Premised on Federal Question Jurisdiction 12 District courts have federal question jurisdiction over “all civil actions that arise 13 under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “A case ‘arises 14 under’ federal law either where federal law creates the cause of action or ‘where the vindication 15 of a right under state law necessarily turn[s] on some construction of federal law.’” Republican 16 Party of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002) (modification in original) 17 (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 8-9 (1983)). “[T]he 18 presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint 19 rule,’ which provides that federal jurisdiction exists only when a federal question is presented on 20 21 22 23 24 25 26 4 The undersigned notes that a federal court has an independent duty to assess whether federal subject matter jurisdiction exists, whether or not the parties raise the issue. See United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (stating that “the district court had a duty to establish subject matter jurisdiction over the removed action sua sponte, whether the parties raised the issue or not”); accord Rains v. Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir. 1996). Because subject matter jurisdiction may not be waived by the parties, a district court must remand a case if it lacks jurisdiction over the matter. Kelton Arms Condominium Owners Ass’n, Inc. v. Homestead Ins. Co.,346 F.3d 1190, 1192 (9th Cir. 2003); accord Sparta Surgical Corp. v. Nat’l Ass’n of Sec. Dealers, Inc., 159 F.3d 1209, 1211 (9th Cir. 1998); see also 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”). 4 1 the face of the plaintiff’s properly pleaded complaint.” Placer Dome, Inc., 582 F.3d at 1091; 2 Ultramar Am. Ltd. v. Dwelle, 900 F.2d 1412, 1414 (9th Cir. 1990) (“Ordinarily, the existence of 3 federal question jurisdiction is determined from the face of the complaint.”). “In determining the 4 existence of removal jurisdiction, based upon a federal question, the court must look to the 5 complaint as of the time the removal petition was filed. Jurisdiction is based on the complaint as 6 originally filed . . . .” Abada v. Charles Schwab & Co., 300 F.3d 1112, 1117 (9th Cir. 2002) 7 (citation and quotation marks omitted). 8 9 Here, plaintiff filed its Complaint in the Superior Court asserting a single claim for unlawful detainer premised solely on California law. Because a claim for unlawful detainer 10 does not by itself present a federal question or necessarily turn on the construction of federal law, 11 no basis for federal question jurisdiction appears on the face of the Complaint. See, e.g., U.S. 12 Bank Nat’l Ass’n v. Tyler, No. C 10-4033 PJH, 2010 WL 4918790, at *2 (N.D. Cal. Nov. 12, 13 2010) (unpublished) (concluding that a single claim for unlawful detainer under state law does 14 not provide a basis for federal question jurisdiction); OneWest Bank FSB v. Ignacio, No. CIV 15 S-10-1683 JAM DAD PS, 2010 WL 2696702, at *2 (E.D. Cal. July 6, 2010) (unpublished) 16 (same); IndyMac Federal Bank, F.S.B. v. Ocampo, No. EDCV 09-2337 PA (DTBx), 2010 WL 17 234828, *2 (C.D. Cal. Jan. 13, 2010) (unpublished) (same); HSBC Bank, N.A. v. Bryant, No. 09- 18 CV-1659-IEG (POR), 2009 WL 3787195, at *3 (S.D. Cal. Nov. 10, 2009) (unpublished) (same). 19 Defendant argues that this court has subject matter jurisdiction over plaintiff’s 20 claim because defendant’s answer to plaintiff’s Complaint points to plaintiff’s violation of the 21 Protecting Tenants At Foreclosure Act of 2009, Pub. L. No. 111-22, § 702, 123 Stat. 1660 (2009) 22 (the “Act”). (Notice of Removal at 2-5, 72-73; Def’s Opp’n to Mot. to Remand at 2 (arguing that 23 defendant has been discriminated against and thus plaintiff has violated federal law).) Insofar as 24 plaintiff’s argument is concerned, the Act provides protections to tenants who reside in properties 25 subject to foreclosure, including the requirement that a 90-day notice to vacate be given to bona 26 fide tenants. See SD Coastline LP v. Buck, No. 10CV2108 MMA (NLS), 2010 WL 4809661, at 5 1 *1 (S.D. Cal. Nov. 19, 2010) (unpublished). 2 Federal courts have rejected attempts to premise federal subject matter jurisdiction 3 on the 90-day notice provision provided in the Act. See Wescom Credit Union v. Dudley, No. 4 CV 10-8203 GAF (SSx), 2010 WL 4916578, at *2 (C.D. Cal. Nov. 22, 2010) (unpublished); SD 5 Coastline LP, 2010 WL 4809661, at *2-3; Aurora Loan Servs., LLC v. Martinez, No. C10-01260 6 HRL, 2010 WL 1266887, at *1 (N.D. Cal. Mar. 29, 2010) (unpublished). This rejection of 7 asserted jurisdiction is because such an argument is an attempt to premise this court’s subject 8 matter jurisdiction on a defense or a counterclaim, which cannot establish a federal question 9 because such a defense or counterclaim does not appear on the face of the complaint.5 See 10 Vaden v. Discover Bank, 129 S. Ct. 1262, 1272 (2009) (stating that federal question jurisdiction 11 cannot “rest upon an actual or anticipated counterclaim”); Takeda v. Nw. Nat’l Life Ins Co., 765 12 F.2d 815, 822 (9th Cir. 1985); see also SD Coastline LP, 2010 WL 4809661, at *2-3 (concluding 13 that unlawful detainer defendant’s claim or defense based on the Protecting Tenants at 14 Foreclosure Act of 2009 cannot serve as a basis for removal jurisdiction); accord Ignacio, 2010 15 WL 2696702, at *2. 16 In short, no federal question is present on the face of plaintiff’s Complaint. 17 Accordingly, 28 U.S.C. § 1331 does not provide this court with subject matter jurisdiction over 18 plaintiff’s single claim for unlawful detainer brought pursuant to California law. 19 B. 20 21 Removal Premised on Diversity Jurisdiction Defendant also removed this case on the basis of the court’s diversity jurisdiction, although she provided no factual basis for the existence of diversity jurisdiction. District courts 22 5 23 24 25 26 Additionally, federal district courts have concluded that the Protecting Tenants at Foreclosure Act of 2009 does not create a federal private right of action, but provides directives to state courts. Deutsche Bank Nat’l Trust Co. v. Jora, No. CIV S-10-1617 MCE EFB PS, 2010 WL 3943584, at *1 n.3 (E.D. Cal. Oct. 1, 2010) (unpublished) (citing Fannie Mae v. Lemere, No. S-10-1474 MCE GGH PS, 2010 WL 2696697, at *2 (E.D. Cal. July 6, 2010) (unpublished) (citing Nativi v. Deutsche Bank Nat'l Trust, No. 09-06096 PVT, 2010 WL 2179885 (N.D.Cal. 2010)); Zalemba v. HSBC Bank, USA, Nat’l Ass’n, No. 10-cv-1646 BEN (BLM), 2010 WL 3894577, at *2 (S.D. Cal. Oct. 1, 2010) (unpublished). 6 1 have diversity jurisdiction over “all civil actions where the matter in controversy exceeds the sum 2 or value of $75,000, exclusive of interest and costs,” and the action is between: “(1) citizens of 3 different States; (2) citizens of a State and citizens or subjects of a foreign state; (3) citizens of 4 different States and in which citizens or subjects of a foreign state are additional parties; and (4) a 5 foreign state . . . as plaintiff and citizens of a State or of different States.” 28 U.S.C. § 1332; see 6 also Geographic Expeditions, Inc., 599 F.3d at 1106. 7 It is defendant’s burden to establish the existence of diversity jurisdiction. Here, 8 defendant has made no attempt to provide a factual basis for diversity jurisdiction. Accordingly, 9 the undesigned concludes that defendant has not met her burden, and diversity jurisdiction does 10 not keep plaintiff’s unlawful detainer claim in federal court. 11 IV. 12 CONCLUSION For the reasons stated above, IT IS HEREBY RECOMMENDED that plaintiff’s 13 motion to remand (Dkt. No. 4) be granted and that this matter be remanded to the Superior Court 14 of California, County of Sacramento, on the grounds that this court lacks federal subject matter 15 jurisdiction over plaintiff’s claims. 16 These findings and recommendations are submitted to the United States District 17 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 18 days after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Id.; see also E. Dist. Local Rule 304(b). 20 Such a document should be captioned “Objections to Magistrate Judge’s Findings and 21 Recommendations.” Any response to the objections shall be filed with the court and served on 22 all parties within fourteen days after service of the objections. E. Dist. Local Rule 304(d). 23 Failure to file objections within the specified time may waive the right to appeal the District 24 //// 25 //// 26 //// 7 1 Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 2 F.2d 1153, 1156-57 (9th Cir. 1991). 3 4 IT IS SO RECOMMENDED. DATED: December 15, 2010 5 6 7 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 8