Federal Home Loan Mortgage Corporation v. Gallardo

Filing 10

ORDER GRANTING Unopposed Motion to Remand signed by Judge Oliver W. Wanger on 7/18/2011. (Proposed Order Consistent with Memorandum Decision Deadline: 7/26/2011) (Figueroa, O)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FEDERAL HOME LOAN MORTGAGE
CORPORATION,

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ORDER GRANTING UNOPPOSED
MOTION TO REMAND (DOC. 4)

Plaintiff,

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v.

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1:10-cv-02337 OWW DLB

JULIAN GALLARDO,
Defendant.

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This action concerns real property located at 2409

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Park Brae Way, Modesto, CA 95358 (“Subject Property”).

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Plaintiff, Federal Home Loan Mortgage Corporation

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(“Freddie Mac”), purchased the Subject Property at a

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trustee’s sale on June 8, 2010.

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Doc. 1 at page 12 of 19.

Freddie Mac’s title was perfected by the recording of the
Trustee’s Deed Upon Sale.

Id.

Defendant Julian Gallardo

was served with a written 3-Day Notice to Vacate on July

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15, 2010.

Id.

Defendant failed to comply with the

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Notice to Vacate, and Freddie Mac filed an action for

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unlawful detainer in Stanislaus County Superior Court on
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August 10, 2010.

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trial was scheduled for November 16, 2010.

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Id.

Defendant filed an Answer and

After trial on November 16, 2010, the Superior Court
found Freddie Mac was entitled to possession of the
Subject Property but that no lockout would occur prior to
December 5, 2010.

Plaintiff’s Request for Judicial

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Notice (“PRJN”) at Ex. A.

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of Plaintiff and a writ of possession issued on December

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10, 2010.

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Judgment was entered in favor

Id.

Defendant removed the underlying action to this Court
on December 15, 2010.

Doc. 1.

Shortly thereafter, on

December 17, 2010, Defendant filed for Chamber 13,
Bankruptcy protection in the United States Bankruptcy

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Court for the Eastern District of California, Petition

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No. 10-94880.

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stay prevented Plaintiff from executing the writ of

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possession on December 10, 2010.

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Freddie Mac obtained relief from the automatic stay.

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RJN, Ex. C.

PRJN, Ex. B.

The automatic bankruptcy

On February 24, 2011,

According to Freddie Mac’s motion, lockout

was scheduled and completed on March 2, 2011.
of the property is no longer in dispute.

Possession

Freddie Mac now

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requests remand of this case to Stanislaus County

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Superior Court.

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has not filed an opposition and failed to appear at oral

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Doc. 4.

Defendant, who proceeds pro se,

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argument on this motion.
The standard for removal is set forth in 28 U.S.C. §
1441, which provides that a defendant may remove to
federal court any action over which the federal court
would have original jurisdiction:
Except as otherwise expressly provided by Act of
Congress, any civil action brought in a State
court of which the district courts of the United
States have original jurisdiction, may be
removed by the defendant or the defendants, to
the district court of the United States for the
district and division embracing the place where
such action is pending. For purposes of removal
under this chapter, the citizenship of
defendants sued under fictitious names shall be
disregarded.
28 U.S.C. § 1441(a).
Federal courts have original jurisdiction over civil

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actions arising under the U.S. Constitution, federal

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laws, or treaties of the United States -- so called

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“federal questions.”

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jurisdiction is governed by the “well-pleaded complaint

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rule,” which provides that the federal question must be

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28 U.S.C. § 1331.

Federal Question

presented on the face of the plaintiff’s properly pleaded
complaint.

Wayne v. DHL Worldwide Express, 294 F.3d

1179, 1183 (9th Cir. 2002).

The existence of a defense

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based on federal law is insufficient.

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is no federal question jurisdiction because the face of

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the complaint reveals only one claim: a state law cause

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Id.

Here, there

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of action for unlawful detainer, to recover possession of

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real property, an inherently local action, involving the

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law of real property and contract.

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Alternatively, a Federal Court may assert original
jurisdiction over civil actions where the matter in
controversy exceeds $75,000 in value, exclusive of

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interest and costs, and is between citizens of different

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States, pursuant to the “diversity” statute, 28 U.S.C. §

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1331.

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complaint that the amount in controversy is $95,000,

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Even assuming the truth of the allegation in the

removal of diversity cases is limited to situations where
“none of the parties in interest properly joined and
served as defendants is a citizen of the State in which

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such action is brought.”

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on Julian Gallardo’s own admission in his removal papers,

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he is a resident of California, Doc. 1, Defendant is a

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citizen of the state in which this action is brought and

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therefore is barred from removing this case to federal

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28 U.S.C. 1441(b).

Here, based

court.
Plaintiff also requests that it be allowed to recover
its reasonable fees and costs incurred in filing this

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motion for remand, in the amount of $675 plus costs.

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U.S.C. § 1447 provides that “[a]n order remanding the

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case may require payment of just costs and any actual

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expenses, including attorney fees, incurred as a result

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of the removal.”

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may award attorney’s fees under § 1447(c), only where the

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“Absent unusual circumstances, courts

removing party lacked an objectively reasonable basis for
seeking removal.”
U.S. 132, 141

Martin v. Franklin Capital Corp., 546

(2005).

A pro se defendant is “entitled

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to more leeway in his attempt to comply with the removal

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statute, as long as it was not objectively unreasonable.”

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HSBC Bank USA, N.A. v. Bryant, 2009 WL 3787195 (S.D. Cal.

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Nov. 10, 2009).

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Nevertheless, pro se litigants “must

follow the same rules of procedure that govern other
litigants.”
1987).

King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.

Defendant has failed to offer any explanation for

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his removal, which fails to comply with the facial

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requirements of the removal statute, and has filed no

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opposition.

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Plaintiff’s fee request includes 2.0 billable hours

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to prepare the motion and an anticipated additional one

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(1.0) hour to attend the hearing (at $225.00/hour), for a
total of $675, is reasonable
CONCLUSION

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For the reasons set forth above:

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(1) This action is REMANDED to Stanislaus County

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Superior Court; and
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(2) Plaintiff’s request for $675.00 in attorney’s

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fees and costs associated with this remand motion is

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GRANTED.

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Plaintiff shall submit a proposed order consistent
with this memorandum decision within five (5) days
following electronic service.
SO ORDERED
Filed: July 18, 2011
/s/ Oliver W. Wanger
United States District Judge

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