Federal Home Loan Mortgage Corporation v. Garcia et al

Filing 8

FINDINGS and RECOMMENDATIONS To Remand the matter to the Kern County Superior Court and to Dismiss the Matter signed by Magistrate Judge Jennifer L. Thurston on 6/13/2011. Objections to F&R due by 7/5/2011. (Leon-Guerrero, A)

Download PDF
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 FINDINGS AND RECOMMENDATION TO REMAND THE MATTER TO THE KERN COUNTY SUPERIOR COURT AND TO DISMISS THE MATTER 18 Sergio Garcia seeks removal of an action from the Kern County Superior Court. (Doc. 1). 19 Currently before the Court is a motion to remand the action filed by plaintiff Federal Home Loan 20 Mortgage Corporation (“Plaintiff”). (Doc. 5). In advance of the hearing, Defendant did not file any 21 opposition to this motion. However, Defendant appeared at the hearing and provided the Court a 22 document opposing the motion that, in essence, sought a preliminary injunction. 23 24 25 For the following reasons, the Court recommends the motion to remand be GRANTED. I. Procedural History Plaintiff commenced this action by filing a complaint for unlawful detainer in Kern County 26 Superior Court against Sergio Garcia and Mark Lopez on February 15, 2011, in case n. (Doc. 5 at 3). 27 On February 17, 2011, defendants Garcia and Lopez filed individual answers to the complaint. Id. 28 1 1 Garcia filed a “Petition for Removal” on May 4, 2011, thereby commencing the action in this 2 Court. (Doc. 1). Garcia’s Petition for removal reads like a complaint for damages; he asserts 3 numerous “causes of action” related to the foreclosure and sale of the real property at 5500 Dolfield 4 Avenue in Bakersfield, California. Included in his request for damages, Garcia seeks declaratory and 5 injunctive relief; compensatory, punitive, and exemplary damages; quiet title; and an order setting 6 aside the foreclosure sale. Id. at 18-19. Garcia argues, “This district Court of the United States has 7 original, concurrent jurisdiction over this cause of action” because “all mortgage issues are Federal 8 bones, which gives Federal Courts [j]urisdiction.” Id. at 2. Supporting this, Garcia argues the 9 mortgage issues are federal bonds regulated by federal laws, including RESPA, TILA, and the 10 National Banking Act. Id. 11 II. Removal Jurisdiction 12 Pursuant to 28 U.S.C. § 1441(a), a defendant has the right to remove a matter to federal court 13 where the district court would have original jurisdiction. Caterpillar, Inc. v. Williams, 482 U.S. 286, 14 392 (1987). Specifically, 15 16 Except 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 defendants, to the district court of the United States for the district and division embracing the place where such action is pending. 17 18 28 U.S.C. § 1441(a). District courts have “original jurisdiction of all civil actions arising under the 19 Constitution, laws, or treaties of the United States.” Id. at § 1331. 20 A party seeking removal must file a notice of removal of a civil action within thirty days of 21 receipt of a copy of the initial pleading. Id. at § 1446(b). Removal statutes are to be strictly 22 construed, and any doubts are to be resolved in favor of state court jurisdiction and remand. See 23 Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). The party seeking removal bears the burden of 24 proving its propriety. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996); Abrego v. Dow Chem. 25 Co., 443 F.3d 676, 683-85 (9th Cir. 2006); see also Calif. ex. rel. Lockyer v. Dynegy, Inc., 2274 F.3d 26 831, 838 (“the burden of establishing federal jurisdiction falls to the party invoking the statute”). 27 The Court may remand an action to state court for lack of subject matter jurisdiction or for 28 defect in the removal procedure. 28 U.S.C. § 1447(c). A party opposing removal on the basis of a 2 1 procedural defect must make a motion to remand within thirty days of the filing of the notice of 2 removal. Id. 3 III. Discussion and Analysis 4 A. Removal of the action violates the “rule of unanimity.” 5 In cases involving multiple defendants, such as the current matter, the “rule of unanimity” 6 requires that all defendants must join in a removal petition. Wisconsin Dept of Corrections v. 7 Schacht, 524 U.S. 381, 393 (1998), citing Chicago, Rock Island, & Pacific Railway Co. v. Martin, 8 178 U.S. 245, 248 (1900). One defendant’s timely removal notice containing an averment of the 9 other defendants’ consent and signed by an attorney of record is sufficient.” Proctor v. Vishay 10 Intertechnology Inc., 584 F.3d 1208, 1225 (9th Cir. 2009). However, in his notice of removal, 11 Garcia fails to acknowledge his co-defendant, and fails to indicate Lopez joins or consents to the 12 removal. Therefore, the notice of removal is defective. 13 B. Garcia’s removal was untimely. 14 As noted above, a notice of removal must be filed within thirty days of the defendant 15 16 17 18 receiving a copy of the pleading. Specifically, 28 U.S.C. § 1446(b) states, The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. 19 20 21 22 If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title [28 USCS § 1332] more than 1 year after commencement of the action. 23 Id. (emphasis added). According to the state court’s records of the proceedings, Garcia was served 24 with the summons and complaint on February 15, 2011, and Lopez was served on February 17, 25 2011.1 Where there is more than one defendant, the removal period commences with service on the 26 27 28 1 The Court may take notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). The record of state court proceeding is a source whose accuracy cannot reasonably be questioned, and judicial notice 3 1 first party. Teitelbaum v. Soloski, F. Supp. 614, 615 (C.D. Cal. 1994) (“Because all defendants must 2 join, the 30-day period for removal commences to run from the date the first defendant receives a 3 copy of the complaint.”). Therefore, removal of the action must have been completed within thirty 4 days of service to Garcia, or by March 17, 2011. Consequently, Garcia’s removal of the action on 5 May 4, 2011, was untimely. 6 C. The district court lacks subject matter and diversity jurisdiction. 7 As the party seeking removal, Garcia “bears the burden of actually proving the facts to 8 support jurisdiction, including the jurisdictional amount.” Sanchez v. Monumental Life Ins., 102 9 F.3d 398, 403 (9th Cir. 1996), citing Gaus, 980 F.2d at 677-67. Garcia argues that removal was 10 11 12 proper and the Court has jurisdiction over this matter because: 12 USC 1452(F) is federal claims, and all mortgage issues are Federal Bonds, which gives Federal Courts Jurisdiction. [Citation] The instruments were regulated by federal RESPA law, TILA and federal national banking laws under the National Banking Act... and the prima facie law, USC Title 12, Banks and Banking. 13 14 (Doc. 1 at 2). However, the determination of federal question jurisdiction “is governed by the ‘well15 pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal question 16 is presented on the face of plaintiff’s properly pleaded complaint.” Caterpillar, 482 U.S. at 392). 17 Therefore, the complaint must establish “either that [1] federal law creates the cause of action or that 18 [2] the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal 19 law.” Willisont Basin Interstate Pipeline Co. v. An Exclusive Gas Storage Leasehold & Easement, 20 524 F.3d 1090, 1100 (9 th Cir. 2008), quoting Franchise Tax Bd. v. Constr. Laborers Vacation 21 Trust, 463 U.S. 1, 27-28 (1983). 22 The complaint filed in state court was an action for unlawful detainer. Importantly, an 23 unlawful detainer action does not arise under federal law, but arises instead under state law. 24 Deutsche Bank Nat’l Trust Co v. Solih Jora, 2010 U.S. Dist. LEXIS 105453, at *4 (E.D. Cal. Oct. 1, 25 2010). Second, to have diversity jurisdiction, the amount in controversy must exceed the sum or 26 27 28 may be taken of court records. Mullis v. United States Bank. Ct., 828 F.2d 1385, 1388 n.9 (9th Cir. 1987); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff'd, 645 F.2d 699 (9th Cir.); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989). As such, the Internet website for the Kern County Superior Court, containing the court system’s records for filings in that court in this case (number S-1500-CL-256882) is subject to judicial notice. 4 1 value of $75,000. 28 U.S.C. § 1332(a). However, review of the state court docket indicates the 2 amount sought by Plaintiff in the action was less than $10,000. Therefore, the Court lacks subject 3 matter and diversity jurisdiction. 4 IV. Findings and Recommendations 5 It appears that Garcia’s removal was an improper attempt to thwart the state court lawsuit. 6 Garcia’s assertions lack support, and he fails to establish any basis for federal court jurisdiction. 7 Moreover, Garcia’s removal was untimely, and failed to comply with the “rule of unanimity.” 8 Based upon the foregoing, the Court hereby RECOMMENDS that: 9 1. The motion to remand be GRANTED; 10 2. The matter be REMANDED to the Kern County Superior Court; and 11 3. Because the order remanding this matter to state court concludes this case, the Clerk 12 13 of the Court be ordered to close this matter. These Findings and Recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the 15 Local Rules of Practice for the United States District Court, Eastern District of California. Within 16 twenty-one days after being served with these findings and recommendations, Plaintiff may file 17 written objections with the court. Such a document should be captioned “Objections to Magistrate 18 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 19 the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 20 F.2d 1153 (9th Cir. 1991). 21 22 IT IS SO ORDERED. 23 Dated: June 13, 2011 9j7khi 24 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 25 26 27 28 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?