PNC Bank NA v. Branch et al
Filing
12
ORDER remanding this case to Maricopa County Superior Court. That Plaintiff's request for attorneys' fees is denied. Signed by Judge James A Teilborg on 7/21/11. (Attachments: # 1 Remand letter)(DMT)
1
WO
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
10
11
12
13
14
15
)
)
)
Plaintiff,
)
)
vs.
)
)
David Branch; John Doe Occupant 1)
)
(whose real name is John Moreau),
)
)
Defendants.
)
)
PNC Bank, National Association,
No. CV 11-596-PHX-JAT
ORDER
16
The Court has reviewed the amended notice of removal, the response, and the reply,
17
all of which were filed in response to this Court’s orders which questioned this Court
18
jurisdiction to hear this case. The Court’s questions arose based on the fact that removing
19
party, Moreau, alleged jurisdiction based on his defense to the state court Forcible Detainer
20
action brought by Plaintiff. Specifically, Moreau argues that the Protecting Tenants at
21
Foreclosure Act of 2009 (12 U.S.C. § 5220 (notes)) is the basis for his defense to his
22
eviction.
23
As the Court previously noted: jurisdiction must be based on the allegations of the
24
complaint. See Takeda v. Northwestern Nat. Life Ins. Co., 765 F.2d 815, n. 9 (9th Cir. 1985)
25
(“[U]nder the present statutory scheme as it has existed since 1887, a defendant may not
26
remove a case to federal court unless the plaintiff’s complaint establishes that the case ‘arises
27
under’ federal law.”) (quoting Franchise Tax Board v. Construction Laborers Vacation
28
Trust, 463 U.S. 1, 10 (1983)).
1
In his amended notice of removal, Moreau argued two bases for jurisdiction: 1) the
2
Real Estate Settlement Procedures Act; and 2) complete preemption by the Protecting
3
Tenants at Foreclosure Act of 2009. The Court required Plaintiff to respond to these
4
arguments. Plaintiff asserts that none of its claims, nor any of Moreau’s defenses, are based
5
on the Real Estate Settlement Procedures Act. The Court agrees and finds that the Real
6
Estate Settlement Procedures Act does not provide a basis for subject matter jurisdiction.
7
Additionally, the Court agrees with Plaintiff that the Protecting Tenants at Foreclosure
8
Act of 2009 did not completely preempt the jurisdiction of state courts whenever a foreclosed
9
property is occupied by a tenant. In fact, as Plaintiff notes, the Act specifically allows State
10
laws that are more favorable to the tenant. See 42 U.S.C. 1437f (2009 Amendments).
11
Therefore, the Court finds that there is not complete preemption.
12
13
Thus, the Court concludes that there is no basis for federal subject matter jurisdiction
in the case. Accordingly,
14
IT IS ORDERED remanding this case to Maricopa County Superior Court.
15
IT IS FURTHER ORDERED that Plaintiff’s request for attorneys’ fees is denied.
16
DATED this 21st day of July, 2011.
17
18
19
20
21
22
23
24
25
26
27
28
-2-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?