Federal Home Loan Mortgage Corporation v. Garcia et al

Filing 10

ORDER ADOPTING 8 FINDINGS AND RECOMMENDATIONS IN FULL; ORDER GRANTING 5 Motion to Remand; and ORDER REMANDING CASE to Kern County Superior Court, signed by Chief Judge Anthony W. Ishii on 7/7/2011. Copy of remand order mailed to Kern County Superior Court. CASE CLOSED. (Jessen, A)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16
17

FEDERAL HOME LOAN
MORTGAGE CORPORATION,

)
)
)
Plaintiff,
)
v.
)
)
)
SERGIO GARCIA, an individual,
)
MARK LOPEZ, an individual, and
)
DOES 1 through 10 inclusive,
)
)
Defendants.
)
_______________________________________ )

Case No.: 1:11-cv-00711 AWI JLT
ORDER ADOPTING THE FINDINGS AND
RECOMMENDATION GRANTING THE
MOTION TO REMAND THE MATTER TO
THE KERN COUNTY SUPERIOR COURT
AND TO DISMISS THE MATTER

18

Sergio Garcia (“Garcia”) seeks removal of an unlawful detainer action filed in Kern County

19

Superior Court by the plaintiff, Federal Home Loan Mortgage Corporation. (Doc. 1). Garcia seeks

20

to challenge the unlawful detainer action and raises numerous “causes of action” related to the

21

foreclosure of the real property.

22

On June 13, 2011, the Magistrate Judge recommended that the plaintiff’s motion to remand

23

the matter to Kern County Superior Court be granted. (Doc. 8). The Magistrate Judge found

24

Garcia’s removal was procedurally defective because it violated the “rule of unanimity” and was

25

untimely. Further, the Magistrate Judge determined Garcia failed to establish any basis for federal

26

court jurisdiction.

27
28

To remove a case to federal court in cases involving multiple defendants, such as the current
matter, the “rule of unanimity” requires that all defendants must join in a removal petition.
1

1

Wisconsin Dept of Corrections v. Schacht, 524 U.S. 381, 393 (1998), citing Chicago, Rock Island, &

2

Pacific Railway Co. v. Martin, 178 U.S. 245, 248 (1900). The Magistrate Judge found Garcia failed

3

to indicate his co-defendant joins or consents to the removal. In addition to this defect, the

4

Magistrate Judge found Garcia failed to file his notice of removal within the thirty days required

5

under 28 U.S.C. § 1446(b).

6

As the party seeking removal to the federal Court, Garcia “bears the burden of actually

7

proving the facts to support jurisdiction, including the jurisdictional amount.” Sanchez v.

8

Monumental Life Ins., 102 F.3d 398, 403 (9th Cir. 1996), citing Gaus v. Miles, 980 F.2d 564, 566-67

9

(9th Cir. 1992). The Magistrate Judge found that the underlying complaint in the unlawful detainer

10

action establishes the Court lacks jurisdiction, because an unlawful detainer action arises under state

11

law. See Deutsche Bank Nat’l Trust Co v. Solih Jora, 2010 U.S. Dist. LEXIS 105453, at *4 (E.D.

12

Cal. Oct. 1, 2010). Further, to have diversity jurisdiction, the amount in controversy must exceed the

13

sum or value of $75,000. 28 U.S.C. § 1332(a). However, the Magistrate Judge reviewed the state

14

court docket, and found it indicates the amount sought by Plaintiff in the action was less than

15

$10,000. Therefore, the Magistrate Judge concluded the Court lacks subject matter and diversity

16

jurisdiction.

17

Although Garcia was granted 21 days from June 13, 2011, or until July 5, 2011, to file

18

objections to the Magistrate Judge’s Findings and Recommendations, he did not do so. Notably,

19

Garcia was advised that failure to file objections within the specified time may waive the right to

20

appeal the Court’s order. (Doc. 8 at 5).

21

In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley

22

United School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court has conducted a de novo review of

23

the case. Having carefully reviewed the entire file, the Court finds that the findings and

24

recommendation are supported by the record and by proper analysis.

25

Accordingly, IT IS HEREBY ORDERED that:

26

1.

27

The Findings and Recommendations filed June 13, 2011, are
ADOPTED IN FULL;

28
2

1

2.

2
3

and
3.

4
5

The matter is ORDERED to be REMANDED to the Kern County Superior Court;

The Clerk of Court IS DIRECTED to close this action because this order terminates
the action in its entirety.

IT IS SO ORDERED.

6
7

Dated:
0m8i78

July 7, 2011
CHIEF UNITED STATES DISTRICT JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3