The Bank of New York Mellon v. Perez

Filing 3

ORDER Remanding Action to the Kern County Superior Court, signed by District Judge Anthony W. Ishii on 5/20/13. Copy of Remand Order sent to Kern County Superior Court. CASE CLOSED. (Verduzco, M)

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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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THE BANK OF NEW YORK MELLON, )
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Plaintiff,
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v.
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SONNY J. PEREZ, and DOES 1-20
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inclusive,
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Defendants.
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____________________________________)

1:13-CV-718 AWI JLT
ORDER REMANDING
ACTION TO THE KERN
COUNTY SUPERIOR COURT

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Defendant Sonny J. Perez, who is proceeding pro se, removed this case from the Superior

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Court of Kern County on May 16, 2013. See Court’s Docket Doc. No. 1. Defendant asserts that

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

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he filed that Plaintiffs are in violation of several federal statues, specifically the Truth In Lending

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Act (“TILA”) and the Fair Debt Collections Practices Act (“FDCPA”). Instead of submitting the

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complaint, Defendant submitted a copy of a judgment from the Kern County Superior Court

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against him. The judgment is in an unlawful detainer action.

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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. Accordingly, “a case may not be removed on the basis of a federal

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defense . . . even if the defense is anticipated in the plaintiff’s complaint and both parties concede

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that the federal defense is the only question truly at issue.” Caterpillar, Inc. v. Williams, 482

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U.S. 386, 392 (1987); Wayne v. DHL Worldwide Express, 294 F.3d 1179, 1183 (9th Cir. 2002);

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see also Vaden v. Discover Bank, 129 S. Ct. 1262, 1278 (2009) (“It does not suffice to show that
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a federal question lurks somewhere inside the parties’ controversy, or that a defense or

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counterclaim would arise under federal law.”).

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Here, Defendant has not shown that removal was appropriate. The evidence before the

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Court is that the state court case has concluded and involved only a single state law unlawful

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detainer claim. First, it does not appear that removal was timely. See 28 U.S.C. § 1446(b)(3).

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Second, as mentioned above, Defendant relies on alleged violations of two federal statutes.

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Thus, Defendant is attempting to remove this case on the basis of federal defenses. This is

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improper, as the defensive invocation of either TILA or the FDCPA cannot form the basis of this

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Court’s jurisdiction. See Vaden 129 S.Ct. at 1278; Caterpillar, 482 U.S. at 392; Wayne, 294

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F.3d at 1183; California, 215 F.3d at 1014; GMAC Mortg., LLC v. Amaya, 2012 U.S. Dist.

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LEXIS 168261 (N.D. Cal. Mar. 21, 2012); Aurora Loan Servs., LLC v. Cromwell, 2010 U.S.

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Dist. LEXIS 136546 (C.D. Cal. Dec. 15, 2010). Because there is no federal question apparent,

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and because all doubts concerning jurisdiction are resolved against removal, Defendant has failed

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to invoke this Court’s jurisdiction. Remand to the Kern 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 Kern County.

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IT IS SO ORDERED.

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Dated:
0m8i78

May 20, 2013
SENIOR DISTRICT JUDGE

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