(PS) Bank of New York Mellon v. Kut, No. 2:2011cv03205 - Document 5 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/6/11 RECOMMENDING that this action be summarily remanded to the Superior Court of California, County of Sacramento. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days after being served with these findings and recommendations. (Meuleman, A)
Download PDF
(PS) Bank of New York Mellon v. Kut Doc. 5 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BANK OF NEW YORK MELLON, 11 12 13 14 15 16 Plaintiff, No. CIV S-11-3205 GEB CKD PS vs. NIKOLAY KUT, et al., Defendants. FINDINGS AND RECOMMENDATIONS / This action was removed from state court. Removal jurisdiction statutes are 17 strictly construed against removal. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 18 (9th Cir. 1979). “Federal jurisdiction must be rejected if there is any doubt as to the right of 19 removal in the first instance.” Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). “The burden of 20 establishing federal jurisdiction falls on the party invoking removal.” Harris v. Provident Life 21 and Accident Ins. Co., 26 F.3d 930 (9th Cir.1994) (quoting Gould v. Mut. Life Ins. Co. of New 22 York, 790 F.2d 769, 771 (9th Cir.1986)). Where it appears the district court lacks subject matter 23 jurisdiction, the case shall be remanded. 28 U.S.C. § 1447(c). 24 In conclusory fashion, the removal petition alleges the complaint is subject to 25 federal question jurisdiction. Removal based on federal question jurisdiction is proper only when 26 a federal question is presented on the face of the plaintiff’s properly pleaded complaint. 1 Dockets.Justia.com 1 Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). However, the exhibits attached to the 2 removal petition establish the state court action is nothing more than a simple unlawful detainer 3 action, and the state court action is titled as such. Defendants have failed to meet their burden of 4 establishing federal jurisdiction and the matter should therefore be remanded. See generally 5 Singer v. State Farm Mutual Automobile Insurance Co., 116 F.3d 373, 375-376 (9th Cir. 1997). 6 7 Accordingly, IT IS HEREBY RECOMMENDED that the above-entitled action be summarily remanded to the Superior Court of California, County of Sacramento. 8 9 These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 10 days after being served with these findings and recommendations, any party may file written 11 objections with the court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 13 shall be served and filed within seven days after service of the objections. The parties are 14 advised that failure to file objections within the specified time may waive the right to appeal the 15 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 Dated: December 6, 2011 17 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 18 19 20 4 bankny-kut.remud 21 22 23 24 25 26 2