(PS) Federal Home Loan Mortgage Corporation v. Lizada et al, No. 2:2011cv03331 - Document 3 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 12/23/2011 RECOMMENDING that this action be summarily remanded to the Superior Court of California, County of San Joaquin and that this case be closed. 1 Referred to Judge Morrison C. England, Jr., Objections due within 14 days after being served with these F & R's. (Reader, L)
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(PS) Federal Home Loan Mortgage Corporation v. Lizada et al Doc. 3 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 FEDERAL HOME LOAN MORTGAGE CORPORATION, 11 Plaintiff, No. CIV S-11-3331 MCE DAD PS 12 vs. 13 14 EDWARD LIZADA; CINDY C. LIZADA, 15 FINDINGS AND RECOMMENDATIONS Defendants. 16 / 17 By Notice of Removal filed December 15, 2011, this unlawful detainer action was 18 removed from the San Joaquin County Superior Court by defendants Edward Lizada and Cindy 19 Lizada, who paid the required filing fee. Each defendant is proceeding pro se. Accordingly, the 20 matter has been referred to the undersigned for all purposes encompassed by Local Rule 21 302(c)(21). 22 It is well established that the statutes governing removal jurisdiction must be 23 “strictly construed against removal.” Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 24 (9th Cir. 1979) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941)). 25 “Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first 26 instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). See also Geographic 1 Dockets.Justia.com 1 Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010). “‘The 2 burden of establishing federal jurisdiction falls on the party invoking removal.’” Harris v. 3 Provident Life & Accident Ins. Co., 26 F.3d 930, 932 (9th Cir. 1994) (quoting Gould v. Mut. Life 4 Ins. Co., 790 F.2d 769, 771 (9th Cir.1986)). Moreover, “the existence of federal jurisdiction 5 depends solely on the plaintiff’s claims for relief and not on anticipated defenses to those 6 claims.” ARCO Envtl. Remediation, LLC v. Dep’t of Health & Envtl. Quality, 213 F.3d 1108, 7 1113 (9th Cir. 2000). Where it appears, as it does here, that the district court lacks subject matter 8 jurisdiction over a removed case, “the case shall be remanded.” 28 U.S.C. § 1447(c). 9 In removing this action, defendants allege in conclusory fashion that “[f]ederal 10 question jurisdiction exists because Defendants’ demurrer, a pleading, depend (sic) on the 11 determination of Defendants’ rights and Plaintiff’s duties under federal law.” (Notice of 12 Removal (Doc. No. 1) at 3.) In this regard, defendants argue that the San Joaquin County 13 Superior Court did not sustain defendants’ demurrer, in violation of 12 U.S.C. § 5220. (Id. at 2.) 14 It is evident however from a reading of plaintiff’s complaint that plaintiff’s action 15 is nothing more than a garden-variety unlawful detainer action filed against the former owner of 16 real property located in California and that it is based wholly on California law. As such, the 17 complaint does not involve any “claim or right arising under the Constitution, treaties or laws of 18 the United States” that would have permitted plaintiff to file this action originally in federal 19 court. See 28 U.S.C. § 1441(b). Moreover, it is evident from defendants’ argument that any 20 federal claims in this action arise solely from defendants’ own affirmative defenses and not from 21 the plaintiff’s unlawful detainer complaint. Thus, defendants have failed to meet their burden of 22 establishing a basis for federal jurisdiction over this action. 23 24 25 26 Accordingly, IT IS RECOMMENDED that this action be summarily remanded to the Superior Court of California, County of San Joaquin and that this case be closed. These findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 2 1 fourteen days after being served with these findings and recommendations, any party may file 2 written objections with the court and serve a copy on all parties. A document presenting 3 objections should be titled “Objections to Magistrate Judge’s Findings and Recommendations.” 4 Any reply to objections shall be filed and served within seven days after service of the objections. 5 DATED: December 23, 2011. 6 7 8 9 10 DAD:6 Ddad1\orders.pro se\fedhomeloan-lizada3331.f&r.remand.ud 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3