U.S. Bank National Association v. Cervantes et al

Filing 6

MINUTES OF IN CHAMBERS - ORDER REMANDING ACTION TO LOS ANGELES COUNTY SUPERIOR COURT by Judge Dolly M. Gee: This action is hereby REMANDED to the Los Angeles County Superior Court, Case Number 17P02382. ( Case Terminated. Made JS-6 ) Court Reporter: Not Reported. (gk)

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

Date

CV 17-6526-DMG (SSx)

Title U.S. Bank National Association v. Dora Cervantes, et al.
Present: The Honorable

JS-6 / REMAND

September 11, 2017
Page

1 of 2

DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

KANE TIEN
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 June 20, 2017, Plaintiff U.S. Bank National Association Successor in Interest to
Wachovia Bank, National Association as Trustee for Banc of America Funding Corporation
Mortgage Pass-Through Certificates, Series 2005-E filed a summons and a Verified Complaint
for Unlawful Detainer in Los Angeles County Superior Court against Dora Cervantes, Sandra
Cervantes, and Does 1–5. Summons at 1–2; [Doc. # 1]; Compl. at 1 [Doc. # 1]. Plaintiff seeks
restitution and possession of the subject premises, $80 per day for damages for Defendants’
continued possession of the premises, and “costs and . . . such other and further relief as the court
may deem just and proper.” Compl. at 3.
Defendant Dora Cervantes removed the case to this Court on September 5, 2017,
asserting subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question) and § 1332
(diversity). See Removal Notice at 2–5.
Cervantes apparently contends that federal question jurisdiction is proper because
Plaintiff’s lawsuit violates her rights secured by the First, Fifth, Seventh, Ninth, and Fourteenth
Amendments of the U.S Constitution. See id. at 1–2. It is axiomatic, however, that federal
jurisdiction cannot rest upon an actual or anticipated defense. See Vaden v. Discover Bank, 556
U.S. 49, 60 (2009). “The presence or absence of federal-question jurisdiction is governed by the
‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal
question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc.
v. Williams, 482 U.S. 386, 392 (1987). The Complaint in this case raises no federal question.
Nor does the Complaint reveal a basis for diversity jurisdiction. The Complaint states
that the amount of damages sought by Plaintiff is $80 per day starting on May 25, 2017. Compl.
at 3. This is well below the $75,000 amount-in-controversy jurisdictional threshold for diversity
jurisdiction. See 28 U.S.C. § 1332(a). Even assuming arguendo that Cervantes correctly points
out that the value of the property is the appropriate measure of the amount in controversy, neither
CV-90

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

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

CV 17-6526-DMG (SSx)

Title U.S. Bank National Association v. Dora Cervantes, et al.

JS-6 / REMAND

Date

September 11, 2017
Page

2 of 2

the Removal Notice nor the Complaint identify the value of the property. See Removal Notice at
3; Compl. at 1–3. Additionally, Cervantes fails to demonstrate that there is complete diversity
between the parties, given that neither her Removal Notice nor the Complaint provides the
citizenship of Co-Defendant Sandra Cervantes. See Removal Notice at 4; Compl. at 1–3.
Furthermore, it appears that Cervantes’s Removal Notice is untimely. A defendant must
file notice of removal within 30 days after “receipt by the defendant . . . of a copy of the initial
pleading setting forth the claim for relief upon which such action or proceeding is based.” 28
U.S.C. § 1446(b). The Complaint was filed on June 20, 2017, and Cervantes’s Removal Notice
was not filed until September 5, 2017, over one month after the 30-day deadline likely had
passed. Defendant Dora Cervantes provides no explanation for the apparent delay in removing
this action to federal court. See Removal Notice at 1–11.
Accordingly, this action is hereby REMANDED to the Los Angeles County Superior
Court.
IT IS SO ORDERED.

CV-90

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT