-CKD (PS) BAC Home Loans Serving LP v. Nguyen et al, No. 2:2011cv02198 - Document 4 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K Delaney on 8/19/2011 recommending that the above-entitled action be summarily remanded to the Place County Superior Court; referred to Judge Garland E. Burrell; Objections due within fourteen days after being served with these findings and recommendations. (Duong, D)

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-CKD (PS) BAC Home Loans Serving LP v. Nguyen et al Doc. 4 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BAC HOME LOANS SERVICING LP, 11 Plaintiff, 12 13 vs. THINH NGUYEN, et al., 14 Defendants. 15 FINDINGS AND RECOMMENDATIONS / 16 17 No. CIV S-11-2198 GEB CKD PS This action was removed from state court on August 18, 2011. Upon review of the notice of removal, it is apparent this court lacks subject matter jurisdiction. 18 Removal jurisdiction statutes are strictly construed against removal. See Libhart 19 v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). “Federal jurisdiction must be 20 rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, 980 21 F.2d 564, 566 (9th Cir. 1992). “The burden of establishing federal jurisdiction falls on the party 22 invoking removal.” Harris v. Provident Life and Accident Ins. Co., 26 F.3d 930 (9th Cir. 1994) 23 (quoting Gould v. Mut. Life Ins. Co. of New York, 790 F.2d 769, 771 (9th Cir.1986)). Where it 24 appears the district court lacks subject matter jurisdiction, the case shall be remanded. 28 U.S.C. 25 § 1447(c). 26 ///// 1 Dockets.Justia.com 1 In conclusory fashion, the removal petition alleges the complaint is subject to 2 federal question jurisdiction. Removal based on federal question jurisdiction is proper only when 3 a federal question is presented on the face of the plaintiff’s properly pleaded complaint. 4 Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). However, the exhibits attached to the 5 removal petition establish the state court action is nothing more than a simple unlawful detainer 6 action, and the state court action is titled as such. Defendant has failed to meet his burden of 7 establishing federal jurisdiction and the matter should therefore be remanded. See generally 8 Singer v. State Farm Mutual Automobile Insurance Co., 116 F.3d 373, 375-376 (9th Cir. 1997). 9 10 Accordingly, IT IS HEREBY RECOMMENDED that the above-entitled action be summarily remanded to the Superior Court of California, County of Placer. 11 These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 13 days after being served with these findings and recommendations, any party may file written 14 objections with the court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 16 shall be served and filed within seven days after service of the objections. The parties are 17 advised that failure to file objections within the specified time may waive the right to appeal the 18 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 Dated: August 19, 2011 20 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 21 22 23 4 bachomeloans-nguyen.remud 24 25 26 2

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