U S Bank National Association v. Grant Gilmore et al

Filing 7

MINUTES (IN CHAMBERS) ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE REMANDED by Judge Christina A. Snyder: Defendants are hereby ORDERED to SHOW CAUSE on or before 10/3/2012, why the instant action should not be remanded for lack of subject matter jurisdiction. Court Reporter: Not Present. (gk)

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

CV 12-7004-CAS-(Ex)

Title

U S BANK NATIONAL ASSOCIATION VS. GRANT GILMORE ET
AL.

Present: The Honorable

Date

September 14, 2012

CHRISTINA A. SNYDER

CATHERINE JEANG
Deputy Clerk

Not Present
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants

Not Present

Not Present

Proceedings:

I.

(In Chambers:) ORDER TO SHOW CAUSE WHY CASE
SHOULD NOT BE REMANDED

INTRODUCTION

On June 14, 2012, plaintiff U.S. Bank National Association as Trustee, Successor
in Interest to Bank of America, National Association as Successor by Merger to Lasalle
Bank NA as Trustee for Washington Mutual Mortgage Pass-Through Certificates Wmalt
Series 2007-05 Trust, filed an unlawful detainer action in Los Angeles County Superior
Court against pro se defendants Grant Gilmore and Does 1 to 6, inclusive.
On August 14, 2012, defendant Gilmore filed a notice of removal to this Court
pursuant to 28 U.S.C. § 1446. Defendant alleges that this court has jurisdiction to hear
the instant case because of violations of New York and federal law, including the
Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq. Defendant also argues that this
Court has jurisdiction pursuant to an expressly authorized exemption to the well-pleaded
complaint rule under 28 U.S.C. § 1443. Defendant also asserts that diversity jurisdiction
exists under 28 U.S.C. § 1332. See Dkt. No. 1.
II.

ANALYSIS

As an initial matter, the notice of removal appears to be untimely. Pursuant to 28
U.S.C. §1446(b), a notice of removal in a civil action must be filed within thirty days
after the defendant receives a copy of the complaint or summons. Here, the action was
initiated on June 14, 2012, yet defendants did not remove until August 14, 2012. Thus,
the removal appears to be untimely.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-7004-CAS-(Ex)

Date

September 14, 2012

Title

U S BANK NATIONAL ASSOCIATION VS. GRANT GILMORE ET
AL.

Second, the law is clear that “[u]nlawful detainer actions are strictly within the
province of state court.” Federal Nat’l Mort. Assoc. v. Suarez, 2011 U.S. Dist. LEXIS
82300, *6 (E.D. Cal. Jul. 27, 2011); Deutsche Bank Nat’l Trust Co. v. Leonardo, 2011
U.S. Dist. LEXIS 83854, *2 (C.D. Cal. Aug. 1, 2011) (“[T]he complaint only asserts a
claim for unlawful detainer, a cause of action that is purely a matter of state law.”). A
defendant’s attempt at creating federal subject matter jurisdiction by adding claims or
defenses to a notice of removal must fail. McAtee v. Capital One, F.S.B., 479 F.3d 1143,
1145 (9th Cir. 2007). Here, the only claim asserted by plaintiffs is for unlawful detainer
against defendants. See Dkt. No. 1. Defendant cannot create federal subject matter
jurisdiction by attempting to raise a defense under the federal securities laws or other
body of federal law. See McAtee, 479 F.3d at 1145. Accordingly, the Court appears to
lack subject matter jurisdiction based on a federal question. Suarez, 2011 U.S. Dist.
LEXIS 82300 at *6.
Moreover, removal pursuant to 28 U.S.C. § 1443 also appears to be improper. To
remove this case pursuant to 28 U.S.C. § 1443 , petitioner must satisfy a two-part test.
See Georgia v. Rachel, 384 U.S. 780, 788–92, 794–804 (1966); City of Greenwood,
Miss. v. Peacock, 384 U.S. 808, 824–28 (1966). Petitioners must demonstrate that: (1) as
a defense to a civil action or prosecution, they have asserted “rights that are given to them
by explicit statutory enactment protecting equal racial civil rights”; and (2) “that the state
court upholds a statute or constitutional provision that orders the state court not to
enforce those federally protected civil rights.” California v. Sandoval, 434 F.2d 635, 636
(9th Cir. 1970). Defendant has not identified a relevant California statute that would
preclude him from asserting any of his federal civil rights; therefore, it appears that
defendant is unable to satisfy this two-part test. See Union Bank v. Lebow, 2012 U.S.
Dist. LEXIS 60152, *3–4 (C.D. Cal. Apr. 27, 2012). Accordingly, 28 U.S.C. § 1443
does not appear to confer subject matter jurisdiction upon this Court over the instant case.
Finally, defendant also claims that the district court has subject matter jurisdiction
based on diversity of citizenship. See 28 U.S.C. § 1332. However, defendant does not
allege that plaintiff and defendant are citizens of different states. 28 U.S.C. § 1332(a)(1).
Nor does defendant appear to adequately assert that the amount in controversy exceeds
the jurisdictional minimum of $75,000. 28 U.S.C. § 1332(a). In unlawful detainer
actions, the title to the property is not at issue—only the right to possession. See Evans v.
Superior Court, 67 Cal. App. 3d 162, 170 (1977). As such, the amount in controversy is
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-7004-CAS-(Ex)

Date

September 14, 2012

Title

U S BANK NATIONAL ASSOCIATION VS. GRANT GILMORE ET
AL.

determined by the amount of damages sought in the complaint, rather than the value of
the subject real property. Id. Here, plaintiff seeks less than $10,000 in damages. See
Dkt. No. 1. Therefore, the Court does not appear to have subject matter jurisdiction
based on diversity of citizenship.
III.

CONCLUSION

Defendants are hereby ORDERED to SHOW CAUSE on or before October 3,
2012, why the instant action should not be remanded for lack of subject matter
jurisdiction.
IT IS SO ORDERED.
00
Initials of Preparer

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CMJ

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