US Bank National Association v. Fortune G Smith et al

Filing 12

ORDER REMANDING CASE TO LOS ANGELES COUNTY SUPERIOR COURT by Judge Otis D. Wright, II: The Court Grants 8 plaintiffs Motion to Remand Case to State Court Case Remanded to Los Angeles Superior Court, West District, Santa Monica, Case no. 14R11906. The Clerk of the Court shall close this case. MD JS-6. Case Terminated. (lc). Modified on 6/1/2015 (lc).

O
JS-6

1
2
3
4
5
6
7

United States District Court
Central District of California

8
9
10
11

U.S. BANK NATIONAL

12

ASSOCIATION,
Plaintiff,

13

ORDER REMANDING CASE TO

v.

14
15

Case No. 2:15-cv-01790-ODW(FFMx)

LOS ANGELES COUNTY

FORTUNE G. SMITH,

SUPERIOR COURT

Defendant.

16
17
18

I.

19

INTRODUCTION

20

Plaintiff moves to remand this action to the Los Angeles County Superior Court

21

for lack of subject matter jurisdiction. For the reasons discussed below, the Court

22

GRANTS Plaintiff’s Motion to Remand.1 (ECF No. 8.)
II.

23

FACTUAL BACKGROUND

24

U.S. Bank’s claim arose following a non-judicial foreclosure sale of property

25

located at 14922 Kittridge Street, Van Nuys, California 91405.2 (Mot. 3.) On October

26
1

27
28

After carefully considering the papers, the Court deems the matter appropriate for decision without
oral argument. Fed. R. Civ. P. 78; L.R. 7-15.
2
In the Notice of Removal, Defendant erroneously listed the address at issue as that of the Santa
Monica Courthouse, but listed the Kittridge address on the federal civil case cover sheet. The Court

1

29, 2014, U.S. Bank served Fortune G. Smith with a three-day notice to quit. (RJN

2

18.3) The three-day notice advised that additional protections may exist under the

3

Protecting Tenants at Foreclosure Act of 2009 (“PTFA”). (Id. at 15.) The PTFA is a

4

federal law.

5

On November 12, 2014, U.S. Bank initiated a residential unlawful detainer

6

action against Smith in the Los Angeles County Superior Court, case number

7

14R11906. (RJN 4.) On or about December 23, 2014, service of the summons and

8

complaint was complete. (Mot. 4.) On January 29, 2015, Smith filed an Answer with

9

the state court denying that U.S. Bank is entitled to possession of the property. (Not.

10

2; Mot. 4.) On March 11, 2015, Smith removed the action to federal court, alleging

11

federal question subject matter jurisdiction. (Not. 3) Smith did not have counsel at

12

the time she removed the instant action to federal court. She has not retained counsel

13

at this time. On April 28, 2015, U.S. Bank filed a Motion to Remand the instant

14

action. (Mot.) Smith did not oppose.
III.

15

LEGAL STANDARD

16

Federal courts are courts of limited jurisdiction. U.S. Const. art. III, § 2, cl. 1;

17

see Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Removal

18

to a federal district court is proper where the district court has original jurisdiction

19

over the matter. 28 U.S.C. § 1441(a). However, the removal statute is strictly

20

construed against removal jurisdiction, and any doubts about jurisdiction are resolved

21

in favor of remand. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992) (per

22

curiam).

23

jurisdiction. Hunter v. Philip Morris USA, 582 F.3d 1039 (9th Cir. 2009) (citing

24

Gaus, 980 F.2d at 566).

25

///

The party seeking removal bears the burden of establishing federal

26
27
28

understands the property at issue to be located at 14922 Kittridge Street, Van Nuys, California
91405.
3
The Court takes judicial notice to the extent it relies on the documents attached to the RJN.
2

IV.

1

DISCUSSION

2

A.

3

Removal is timely if “filed within [thirty] days after the receipt by the

4
5

Timeliness of Removal

defendant, through service or otherwise,” of the complaint. 28 U.S.C. § 1446(b).
Here, Defendant Smith’s removal was untimely.

Defendant asserts “[t]his

6

Notice of Removal is timely filed,” but fails to provide dates establishing timeliness.

7

Plaintiff U.S. Bank asserts service of the Complaint was complete “on or about

8

December 23, 2014.” (Mot. 4.) Defendant does not allege that service occurred at

9

any other time and did not oppose Plaintiff’s Motion. Because Defendant did not

10

oppose the instant Motion, the Court finds service effective as of December 23, 2014.

11

Defendant removed the action on March 11, 2015, seventy-eight days later. Even if

12

Defendant did not receive the Complaint until January 29, 2015, the same date she

13

filed her Answer, removal on March 11, 2015, forty-one days later, still falls outside

14

of thirty days. The Court finds that, because Defendant removed the case more than

15

thirty days after receipt of the Complaint, removal was untimely.

16

Normally, untimely removal is a fatal procedural defect and the Court may

17

remand on that basis alone. However, here, Defendant acted pro se and may not have

18

been aware of the procedural requirements for removal. Still, even if Defendant’s

19

removal were timely, additional grounds exist for remand.

20

B.

Subject Matter Jurisdiction

21

In the Notice of Removal, Defendant alleges only federal question jurisdiction.

22

However, Defendant is pro se and, in an abundance of caution, Plaintiff’s Motion

23

contends the Court lacks jurisdiction under either federal question or diversity

24

jurisdiction. Therefore, the Court addresses both grounds for jurisdiction.

25

1.

Federal Question Jurisdiction

26

A district court has federal question jurisdiction in “all civil actions arising

27

under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A

28

case “arises under” federal law “only when the plaintiff’s statement of his own cause
3

1

of action shows that it is based upon federal law.” Vaden v. Discover Bank, 556 U.S.

2

49, 60 (2009) (quoting Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152

3

(1908)). Alleged defenses do not create a federal question basis for removal, even if

4

the plaintiff’s complaint anticipates the defense. Id. at 60; Franchise Tax Bd. v.

5

Constr. Laborers Vacation Trust, 463 U.S. 1, 10-12 (1983).

6

Plaintiff asserts only a state law cause of action in its Complaint for unlawful

7

detainer under California Civil Procedure Code section 1161a. The summons and

8

state court civil case cover sheet both only indicate a state law residential unlawful

9

detainer cause of action.

Defendant’s removal erroneously relies on the PTFA.

10

Defendant contends that Plaintiff’s Complaint referenced the notice to quit, which in

11

turn referenced the PTFA, and therefore the PTFA establishes a basis for federal

12

question jurisdiction.

13

The PTFA “was intended to provide a defense in state eviction proceedings

14

rather than a basis for offensive suits in federal court.” Logan v. U.S. Bank Nat’l

15

Assoc., 722 F.3d 1163, 1173 (9th Cir. 2013). Thus, Congress did not intend the PTFA

16

to provide a basis for federal subject matter jurisdiction. Further, even if the PTFA

17

provided a federal defense to Plaintiff’s cause of action, defenses do not create a

18

federal question basis for removal.

19

2.

Diversity Jurisdiction

20

A district court has diversity jurisdiction where complete diversity exists

21

between the parties and the amount in controversy exceeds $75,000. 28 U.S.C.

22

§ 1332(a).

23

Defendant does not assert citizenship. Defendant bears the burden to establish

24

jurisdiction, and has failed to meet that burden as to diversity. Plaintiff’s Complaint

25

expressly states the action is a limited civil case with an amount in controversy under

26

$10,000. Further, Plaintiff waived any amount in excess of the Court’s jurisdiction in

27

Plaintiff’s Motion. (Mot. 4, 6.) Defendant did not oppose Plaintiff’s Motion or

28

otherwise dispute Plaintiff’s asserted amount in controversy. Therefore, the amount in
4

1

controversy fails to meet the requirement for diversity jurisdiction. Thus, the Court

2

does not possess diversity jurisdiction in this action.
V.

3
4
5
6

CONCLUSION

For the reasons discussed above, the Court GRANTS Plaintiff’s Motion to
Remand. (ECF No. 8.) The Clerk of the Court shall close this case.
IT IS SO ORDERED.

7
8

June 1, 2015

9
10
11

____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

5