Kerner et al v. Deutsche Bank National Trust Company

Filing 5

ORDER Deutsche Bank National Trust Company's 4 motion to remand is granted. To the extent it has been removed, the Clerk is directed to remand the forcible entry and detainer action, Deutsche Bank v. Kerner, No. CV2011-00617 (Ariz. Super. Ct. Apr. 18, 2011), to Mohave County Superior Court. The Wrongful foreclosure complaint (Doc. 1) is dismissed for lack of Subject matter jurisdiction. Signed by Judge David G Campbell on 07/22/11. (Attachments: # 1 Remand Letter)(ESL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kathy Lee Kerner; and Anthony J. Kuc Jr.,
Plaintiffs,

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No. CV-11-8091-PCT-DGC
ORDER

vs.
Deutsche Bank National Trust Company, as
Trustee of the IndyMac INDX Mortgage
Trust 2007-FLX3, Mortgage Pass-Through
Certificates, Series 2007-FLX3 Under the
Pooling and Servicing Agreement Dated
April 1, 2007,

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Defendant.

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In April 2011, Deutsch Bank National Trust Company filed a forcible entry and

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detainer action against Kathy Kerner in state court. Doc. 4 at 7-15; see Deutsche Bank v.

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Kerner, No. CV2011-00617 (Ariz. Super. Ct. Apr. 18, 2011). On June 14, 2011, Kerner

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and Anthony Kuc filed a wrongful foreclosure complaint against Deutsche Bank (Doc. 1)

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and a “notice of change of venue” purporting to remove the state court action to this

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Court (Doc. 2).

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Deutsch Bank has filed a motion to remand. Doc. 4. No response has been filed.

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For reasons stated below, the motion will be granted with respect to the state court action

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and the wrongful foreclosure complaint will be dismissed for lack of jurisdiction.

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Federal courts are courts of limited jurisdiction, “possess[ing] only that power

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authorized by Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am.,

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511 U.S. 375, 377 (1994). Pursuant to 28 U.S.C. § 1441, a party “may remove an action

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to federal court based on federal question jurisdiction or diversity jurisdiction.” Hunter v.

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Phillip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009); see 28 U.S.C. §§ 1331, 1332.

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The notice of removal in this case asserts both federal question and diversity jurisdiction.

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Doc. 2 at 2.

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“It is to be presumed that a cause of action lies outside the limited jurisdiction of

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the federal courts and the burden of establishing the contrary rests upon the party

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asserting jurisdiction.” Hunter, 582 F.3d at 1042 (citations omitted). Kerner and Kuc

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have not met their burden.

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I.

Federal Question Jurisdiction.

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The Court has subject matter jurisdiction over cases “arising under” federal law.

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28 U.S.C. § 1331. It is well established that federal question jurisdiction exists only

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where the complaint itself establishes that the case arises under federal law. Franchise

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Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 10 (1983).

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Stated differently, “[t]he federal question ‘must be disclosed upon the face of the

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complaint unaided by the answer or petition for removal.’” Takeda v. Nw. Nat’l Life Ins.

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Co., 765 F.2d 815, 821 (9th Cir. 1985) (quoting Gully v. First Nat’l Bank, 299 U.S. 109,

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113 (1936)).

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Deutsche Bank’s complaint asserts a forcible entry and detainer claim pursuant to

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A.R.S. §§ 12-1173 and 12-1173.01. Doc. 4 at 9. Because that claim does not depend on

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resolution of any issue of federal law, the Court does not have subject matter jurisdiction

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over the claim under 28 U.S.C. § 1331.

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Nor does the Court have federal question jurisdiction over the claims asserted in

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the complaint filed by Kerner and Kuc (which essentially are counterclaims to the

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forcible detainer action). Kerner and Kuc purport to assert four “claims”: broken chain

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of title, incorrect real party in interest, defective deed of trust, and invalid assignment.

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Doc. 1 at 6-11. None of those claims arise under federal law.

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II.

Diversity Jurisdiction.

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Federal courts possess diversity jurisdiction “where the matter in controversy

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exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . .

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citizens of different States[.]” 28 U.S.C. § 1332(a)(1). The removing party “bears the

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burden of proving by a preponderance of the evidence that the amount in controversy

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exceeds [$75,000].” Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 376 (9th

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Cir. 1997) (citations omitted). Kerner and Kuc present no evidence, or even an argument,

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that the amount in controversy exceeds the jurisdictional amount. Nor do they allege

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facts establishing complete diversity of citizenship.

The Court is without diversity

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jurisdiction over the state court action and the wrongful foreclosure complaint.

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III.

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Conclusion.
Courts strictly construe the removal statute, 28 U.S.C. § 1441, against removal

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jurisdiction.

Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

This strong

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presumption against removal means that the removing party always has the burden of

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establishing that removal is proper, and federal jurisdiction “must be rejected if there is

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any doubt as to the right of removal in the first instance.” Id. Kerner and Kuc have

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failed to meet their high burden. The Court therefore will grant Deutsche Bank’s motion

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and remand the forcible entry and detainer action to state court. 28 U.S.C. § 1447(c) (the

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case shall be remanded if “at any time before final judgment it appears that the district

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court lacks subject matter jurisdiction”); see also LRCiv 7.2(i) (the district court may

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summarily grant an unopposed motion).

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“[A] federal court may dismiss sua sponte if jurisdiction is lacking.” Fiedler v.

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Clark, 714 F.2d 77, 78 (9th Cir. 1983). Indeed, “[i]f the court determines at any time that

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it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P.

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12(h)(3). The claims asserted in the wrongful foreclosure complaint (Doc. 1) do not arise

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under federal law, nor does reference to the “United States Constitution, Article II

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section 2” (id. at 2) suffice to establish federal question jurisdiction under 28 U.S.C.

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§ 1331. The complaint fails to establish diversity jurisdiction pursuant to 28 U.S.C.

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§ 1332. The complaint therefore will be dismissed for lack of subject matter jurisdiction.

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IT IS ORDERED:

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granted.

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2.

Deutsche Bank National Trust Company’s motion to remand (Doc. 4) is

To the extent it has been removed, the Clerk is directed to remand the

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forcible entry and detainer action, Deutsche Bank v. Kerner, No. CV2011-00617 (Ariz.

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Super. Ct. Apr. 18, 2011), to Mohave County Superior Court.

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3.

The wrongful foreclosure complaint (Doc. 1) is dismissed for lack of

subject matter jurisdiction.
Dated this 22nd day of July, 2011.

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