The Bank of New York Mellon v. Jerome Octaviano et al

Filing 25

ORDER by Judge Dolly M. Gee remanding case to Superior Court of California Los Angeles County, Case number 12H00071 Case Terminated. Made JS-6 (rrey)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

Date

CV 12-0712-DMG (AGRx)

Title The Bank of New York Mellon v. Jerome Octaviano, et al.
Present: The Honorable

JS-6

April 4, 2012
Page

1 of 2

DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

VALENCIA VALLERY
Deputy Clerk

NOT REPORTED
Court Reporter

Attorneys Present for Plaintiff(s)
None Present

Attorneys Present for Defendant(s)
None Present

Proceedings: IN CHAMBERS – ORDER REMANDING ACTION TO LOS ANGELES
COUNTY SUPERIOR COURT
On January 26, 2012, defendant removed this case from Los Angeles County Superior
Court to this Court asserting subject matter jurisdiction on the basis of federal question (28
U.S.C. § 1331) and diversity (28 U.S.C. § 1332). The complaint, however, raises no federal
question, nor does it reveal a basis for diversity jurisdiction. Therefore, on March 13, 2012, the
Court issued an Order to Show Cause why this action should not be remanded to the Los
Angeles Superior Court for lack of subject matter jurisdiction (“OSC”). [Doc. # 20.]
In his response to the OSC, defendant argues that both federal question and diversity
provide bases for subject matter jurisdiction herein.
“The burden of establishing federal subject matter jurisdiction falls on the party invoking
removal.” Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 944 (9th Cir.
2009) (citing Toumajian v. Frailey, 135 F.3d 648, 652 (9th Cir. 1998)). There is a “strong
presumption against removal jurisdiction,” and courts must reject it “if there is any doubt as to
the right of removal in the first instance.” Geographic Expeditions, Inc. v. Estate of Lhotka ex
rel. Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010) (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566
(9th Cir. 1992) (per curiam)) (internal quotation marks omitted).
The complaint does not reveal a basis for diversity jurisdiction as the amount in
controversy is well below the $75,000 jurisdictional threshold. Plaintiff sues for unlawful
detainer seeking possession of real property and restitution for defendants’ use and occupancy of
the property in the amount of $100.00 per day starting on January 10, 2012. (compl. at 4.) The
caption of the complaint clearly states that the amount of damages sought by plaintiff does not
exceed $10,000.
Because the sole cause of action for unlawful detainer arises from state law, there also is
no basis for federal question jurisdiction. Federal question jurisdiction cannot rest upon an
CV-90

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk VV

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 12-0712-DMG (AGRx)

Title The Bank of New York Mellon v. Jerome Octaviano, et al.

Date

JS-6

April 4, 2012
Page

2 of 2

actual or anticipated defense or counterclaim. Vaden v. Discover Bank, 556 U.S. 49, 60-61
(2009).
As such, this Court lacks subject matter jurisdiction over this action. Accordingly, this
action is hereby REMANDED to Los Angeles County Superior Court.
IT IS SO ORDERED.

CV-90

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk VV