Federal National Mortgage Association v. Karkazian

Filing 5

ORDER REMANDING CASE to Superior Court of Fresno County, signed by District Judge Anthony W. Ishii on 12/06/2012. Copy of remand order sent to other court at Superior Court of California, County of Fresno, Civil Departmet, 1130 "O" Street, Fresno, CA 93724. CASE CLOSED (Martin-Gill, S)

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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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Plaintiff,
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v.
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ZEPUR KARKAZIAN,
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Defendant.
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____________________________________)
FEDERAL NATIONAL MORTGAGE
ASSOCIATION,

1:12-CV-1968 AWI BAM
ORDER REMANDING
ACTION TO THE FRESNO
COUNTY SUPERIOR COURT

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Defendant Zepur Karkazian, who is proceeding pro se, removed this case from the

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Superior Court of Fresno County on December 3, 2012. See Court’s Docket Doc. No. 1.

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Defendant asserts that the basis for removal is the presence of a federal question. Specifically,

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Defendant contends that his discovery requests for Plaintiff to produce the “the original blue ink

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promissory note” somehow creates a federal question. See id.

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A district court has “a duty to establish subject matter jurisdiction over the removed

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action sua sponte, whether the parties raised the issue or not.” United Investors Life Ins. Co. v.

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Waddell & Reed, Inc., 360 F.3d 960, 967 (9th Cir. 2004). The removal statute (28 U.S.C. §

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1441) is strictly construed against removal jurisdiction. Geographic Expeditions, Inc. v. Estate of

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Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010); Provincial Gov’t of Marinduque v. Placer Dome,

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Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). It is presumed that a case lies outside the limited

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jurisdiction of the federal courts, and the burden of establishing the contrary rests upon the party

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asserting jurisdiction. Geographic Expeditions, 599 F.3d at 1106-07; Hunter v. Philip Morris

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USA, 582 F.3d 1039, 1042 (9th Cir. 2009). “The strong presumption against removal

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jurisdiction” means that “the court resolves all ambiguity in favor of remand to state court.”

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Hunter, 582 F.3d at 1042; Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). That is, federal

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jurisdiction over a removed case “must be rejected if there is any doubt as to the right of removal

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in the first instance.” Geographic Expeditions, 599 F.3d at 1107; Duncan v. Stuetzle, 76 F.3d

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1480, 1485 (9th Cir. 1996); Gaus, 980 F.2d at 566. “If at any time prior to judgment it appears

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that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. §

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1447(c); Gibson v. Chrysler Corp., 261 F.3d 927, 932 (9th Cir. 2001). Remand under 28 U.S.C.

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§ 1447(c) “is mandatory, not discretionary.” Bruns v. NCUA, 122 F.3d 1251, 1257 (9th Cir.

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1997); see California ex. rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004). That

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is, the court “must dismiss a case when it determines that it lacks subject matter jurisdiction,

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whether or not a party has filed a motion.” Page v. City of Southfield, 45 F.3d 128, 133 (6th Cir.

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1995).

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“The presence or absence of federal question jurisdiction is governed by the ‘well-

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pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal

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question is presented on the face of the plaintiff’s properly pleaded complaint.” California v.

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United States, 215 F.3d 1005, 1014 (9th Cir. 2000); see Dynegy, 375 F.3d at 838; Duncan, 76

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F.3d at 1485. Under the “well-pleaded complaint” rule, courts look to what “necessarily appears

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in the plaintiff’s statement of his own claim in the bill or declaration, unaided by anything in

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anticipation of avoidance of defenses which it is thought the defendant may interpose.”

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California, 215 F.3d at 1014. “It does not suffice to show that a federal question lurks

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somewhere inside the parties’ controversy, or that a defense or counterclaim would arise under

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federal law.” Vaden v. Discover Bank, 129 S. Ct. 1262, 1278 (2009).

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Here, Defendant has not shown that removal was appropriate. The complaint filed by

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Plaintiff is an unlawful detainer action that is based entirely on California law. There is no

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federal cause of action pled, and there is no federal question on the face of the complaint. The

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discovery request to produce the original promissory note does not create federal question
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jurisdiction. See Federal Nat’l Mortg. Ass’n v. Rhoades, 2011 U.S. Dist. LEXIS 93464, *3-*4

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(S.D. Cal. Aug. 18, 2011) (holding that no federal question jurisdiction based on a discovery

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request to produce an original promissory note); cf. Vaden, 129 S. Ct. at 1278. Because there is

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no federal question appearing in Plaintiff’s complaint, Defendant has failed to invoke this

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Court’s subject matter jurisdiction. Remand to the Fresno County Superior Court is appropriate

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and mandatory. 28 U.S.C. § 1447(c); Geographic Expeditions, 599 F.3d at 1107; Bruns, 122

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F.3d at 1257; Page, 45 F.3d at 133.

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Accordingly, IT IS HEREBY ORDERED that, per 28 U.S.C. § 1447(c), due to this

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Court’s lack of subject matter jurisdiction, this case is REMANDED forthwith to the Superior

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Court of Fresno County.

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IT IS SO ORDERED.

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Dated:
0m8i78

December 6, 2012
UNITED STATES DISTRICT JUDGE

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