(PS) Bank of New York Mellon v. Terry, No. 2:2012cv02485 - Document 4 (E.D. Cal. 2012)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 10/10/2012 RECOMMENDING that this action be remanded to the Placer County Superior Court; the Clerk be directed to serve a certified copy of the order; and the Clerk be directed to close the case; 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) Bank of New York Mellon v. Terry Doc. 4 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 THE BANK OF NEW YORK MELLON f/k/a THE BANK OF NEW YORK, Plaintiff, CIV. NO. 2:12-cv-2485-MCE-GGH PS 11 vs. 12 SYDNEY TERRY, 13 FINDINGS AND RECOMMENDATIONS 14 15 16 Defendant. / This action was referred to the undersigned pursuant to E.D. Cal. L.R. 302(c)(21). 17 It was removed from state court on October 3, 2012. Dkt. 1. The district court has “a duty to 18 establish subject matter jurisdiction over [a] removed action sua sponte, whether the parties 19 raised the issue or not.” United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 20 967 (9th Cir. 2004); see also Kelton Arms Condominium Assoc., Inc. v. Homestead Ins. Co., 346 21 F.3d 1190, 1192 (9th Cir. 2003). Having reviewed the notice of removal, the court finds that the 22 action should be remanded to state court due to lack of subject matter jurisdiction. 23 Removal jurisdiction statutes are strictly construed against removal. See Libhart 24 v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). “Federal jurisdiction must be 25 rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, 980 26 F.2d 564, 566 (9th Cir. 1992). “The burden of establishing federal jurisdiction falls on the party 1 Dockets.Justia.com 1 invoking removal.” Harris v. Provident Life and Accident Ins. Co., 26 F.3d 930 (9th Cir. 1994), 2 overruled on other grounds by Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 3 979 (9th Cir. 2012). 4 A plaintiff may bring suit in federal court if his claim “arises under” federal law. 5 28 U.S.C. § 1331. In that situation, the court has original jurisdiction. A state court defendant 6 cannot invoke the federal court’s original jurisdiction, but he may in some instances invoke the 7 court’s removal jurisdiction. The requirements to invoke removal jurisdiction are often identical 8 to those for invoking its original jurisdiction. The requirements for both relate to the same end, 9 that is, ascertainment of federal jurisdiction. 10 Removal of a state court action is proper only if it originally could have been filed 11 in federal court. 28 U.S.C. § 1441. “[F]ederal courts have jurisdiction to hear, originally or by 12 removal, only those cases in which a well-pleaded complaint establishes either that federal law 13 creates the cause of action, or that the plaintiff’s right to relief necessarily depends on resolution 14 of a substantial question of federal law.” Franchise Tax Board v. Construction Laborers 15 Vacation Trust, 463 U.S. 1, 27-28, 103 S. Ct. 2841, 2855-56 (1983). Mere reference to federal 16 law is insufficient to permit removal. See Smith v. Industrial Valley Title Ins. Co., 957 F.2d 90, 17 93 (3d Cir. 1992). Also, defenses and counterclaims cannot provide a sufficient basis to remove 18 an action to federal court. See Berg v. Leason, 32 F.3d 422, 426 (9th Cir. 1994); FIA Card Servs. 19 v. McComas, 2010 WL 4974113 (S.D. Cal. Dec. 2, 2010) (remanding action removed by 20 defendant on the basis that defendant’s counterclaim raised a federal question). 21 Here, the exhibits attached to the removal petition establish that the state court 22 action is nothing more than a simple unlawful detainer action, and is titled as such. See Dkt. 1, at 23 pp. 12-15. This court has no jurisdiction over unlawful detainer actions which are strictly within 24 the province of the state court. Defendant’s removal petition references the demurrer he filed in 25 state court, wherein he raised challenges to the foreclosure proceedings related to his property. 26 See Dkt. 1, at pp. 2-3. His challenges are rooted in federal statute, specifically 12 U.S.C. § 5220. 2 1 Id. However, as discussed above, even if his challenges were explicit counterclaims, such 2 challenges cannot provide a sufficient basis to remove the action to federal court. Based on the 3 aforementioned analysis, the court finds that remand is appropriate, because there is no subject 4 matter jurisdiction. 5 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 6 1. The action be remanded to the Placer County Superior Court; 7 2. The Clerk be directed to serve a certified copy of this order on the Clerk of the 8 Placer County Superior Court, and reference the state case number (MCV 54253) in the proof of 9 service; and 10 3. The Clerk be directed to close this case. 11 These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 13 fourteen (14) days after being served with these findings and recommendations, any party may 14 file written objections with the court and serve a copy on all parties. Such a document should be 15 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the 16 objections shall be served and filed within seven (7) days after service of the objections. The 17 parties are advised that failure to file objections within the specified time may waive the right to 18 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 DATED: October 10, 2012 20 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 21 22 23 GGH/9 24 Terry2485.detainerRem.ordwpd 25 26 3

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