The Bank of New York Mellon v. Boyd-Malone et al

Filing 2

ORDER OF REMAND. Because the amount in controversy is not met, the Court lacks jurisdiction over this action. This action is remanded to the Superior Court of California for the County of San Diego. Signed by Judge Larry Alan Burns on 11/28/12 (cc: Superior Court of CA, San Diego)(kaj)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BANK OF NEW YORK MELLON, 12 13 CASE NO. 12cv2836-LAB (DHB) Plaintiff, ORDER OF REMAND vs. LUZ MARIA BOYD-MALONE, 14 Defendant. 15 16 On November 26, 2012, Defendant Luz Maria Boyd-Malone removed this pending 17 unlawful detainer action from the Superior Court of California for the County of San Diego. 18 The notice of removal makes clear Boyd-Malone is a resident of this District, and therefore 19 has no right of removal to exercise. See 28 U.S.C. § 1441(b). The Court does not sua sponte 20 remand for violation of the forum defendant rule, however. See Lively v. Wild Oats Markets, 21 Inc., 456 F.3d 933, 942 (9th Cir. 2006) (holding that forum defendant rule is non-jurisdictional 22 and therefore may not serve as a basis for sua sponte remand by the district court). 23 That said, the Court is required to examine its own jurisdiction, Hernandez v. 24 Campbell, 204 F.3d 861, 865 (9th Cir. 2000), and to remand a case where jurisdiction is 25 lacking. 28 U.S.C. § 1447(c).The court presumes that a case lies outside the limited 26 jurisdiction of the federal courts, and the burden of establishing the contrary rests upon the 27 party asserting jurisdiction. Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009). 28 /// -1- 12cv2836 1 The notice of removal identifies the basis for this Court’s exercise of jurisdiction as 2 diversity. The complaint’s underlying claims arise under state law, and no other basis for this 3 Court’s exercise of jurisdiction is apparent on the face of the complaint (Docket no. 1-3). The 4 notice makes clear the removed case is an unlawful detainer action, in which the Bank of 5 New York Mellon is seeking possession of a house Boyd-Malone is living in. The notice of 6 removal therefore measures the amount in controversy as the value of the house. 7 The error, however, is that the underlying action merely seeks possession, not title, 8 to the house. The title has already been transferred to the Bank, by means of a trustee sale. 9 Furthermore, the notice of removal attaches a copy of a complaint in which Boyd-Malone is 10 a plaintiff and the Bank a defendant. That case, 12cv2407-WQH (DHB), Barr v. Bank of New 11 York Mellon Corporation, is also pending in this District, and seeks a declaration that Barr 12 is the true owner of the property. That complaint identifies Boyd-Malone as Barr’s lessee. 13 It is therefore clear that ownership of the house is at stake only in Barr, and not in this case. 14 See Signet Doman, LLC v. Aintablian, 2012 WL 5512388 at *1 (C.D.Cal., Nov. 14, 2012) (in 15 unlawful detainer action, only possession is at issue, not title, and thus the amount in 16 controversy is the amount sought in the complaint, not the value of the property). 17 The Court also notes that, in spite of Boyd-Malone’s representations to the contrary, 18 the unlawful detainer complaint pleads an amount in controversy less than $10,000. 19 Furthermore, the complaint claims $45.93 per day as the fair rental value of the property. 20 Because Boyd-Malone’s potential interest in the subject house (which the complaint in Barr 21 alleges was sold for $375,750) is nothing more than a possessory interest (i.e., the right to 22 live in it temporarily), the $10,000 limitation is reasonable. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// -2- 12cv2836 1 Because the amount in controversy is not met, the Court lacks jurisdiction over this 2 action. This action is therefore REMANDED to the Superior Court of California for the County 3 of San Diego. 4 5 6 IT IS SO ORDERED. DATED: November 28, 2012 7 8 HONORABLE LARRY ALAN BURNS United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- 12cv2836