Citi Mortgage v. Luera

Filing 6

FINDINGS and RECOMMENDATIONS recommending that this action be remanded for lack of subject matter jurisdiction. Matter referred to Judge Ishii; Objections to F&R due within twenty-one (21) days of service of this recommendation; signed by Magistrate Judge Sheila K. Oberto on 12/3/2014. (Timken, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CITI MORTGAGE, INC., Plaintiff, 11 12 Case No. 1:14-cv-01878-AWI-SKO FINDINGS AND RECOMMENDATION THAT THIS ACTION BE REMANDED FOR LACK OF SUBJECT MATTER JURISDICTION v. 13 OBJECTIONS DUE: 21 DAYS 14 EVANGELINA LUERA, 15 Defendant. _____________________________________/ 16 17 18 19 I. INTRODUCTION On November 26, 2014, Defendant Evangelina Luera ("Defendant") filed a document 20 entitled "NOTICE OF REMOVAL - FEDERAL QUESTION" (the "Removal Notice"). (Doc. 1.) 21 The Removal Notice alleges that removal is proper because the "matter is one that may be 22 removed to this Court pursuant to 28 U.S.C. § 1441 because it is a civil action arising under 23 federal law and in which a federal statute is drawn in controversy." (Doc. 1, ¶ 3.) It appears that 24 Defendant is seeking to remove this action on the ground that Plaintiff has expressly referenced 25 and incorporated the Protecting Tenants at Foreclosure Act of 2009 (the "Act") in its complaint. 26 (Doc. 1, ¶ 7.) Defendant also maintains the Act is placed into controversy by Plaintiff's complaint 27 because it provides a ninety-day notice period prior to the filing of any state eviction proceeding; 28 Defendant claims Plaintiff did not allow the ninety-day period to lapse before filing his claim. 1 For the reasons set forth below, the undersigned RECOMMENDS this action be 2 REMANDED to the Fresno County Superior Court. 3 II. DISCUSSION 4 A. Legal Standard 5 Pursuant to Title 28 U.S.C. Section 1441(a), "any civil action brought in a State court of 6 which the district courts of the United States have original jurisdiction, may be removed by the 7 defendant or the defendants, to the district court of the United States for the district and division 8 embracing the place where such action is pending." A district court has "a duty to establish 9 subject matter jurisdiction over the removed action sua sponte, whether the parties raised the issue 10 or not." United Investors Life Ins. Co. v. Waddell & Reed, Inc., 360 F.3d 960, 967 (9th Cir. 2004). 11 "If at any time prior to judgment it appears that the district court lacks subject matter jurisdiction, 12 the case shall be remanded." 28 U.S.C. § 1447(c). 13 The removal statute is strictly construed against removal jurisdiction. Geographic 14 Expeditions, Inc. v. Estate of Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010); Provincial Gov't of 15 Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). The court presumes that a 16 case lies outside the limited jurisdiction of the federal courts, and the burden of establishing the 17 contrary rests upon the party asserting jurisdiction. Geographic Expeditions, 599 F.3d at 1106-07; 18 Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009). 19 B. This Court Lacks Subject Matter Jurisdiction 20 Title 28 U.S.C. Section 1331 provides jurisdiction for federal question claims and states 21 that "district courts shall have original jurisdiction of all civil actions arising under the 22 Constitution, laws, or treaties of the United States." 23 Plaintiff's complaint states a single claim for unlawful detainer pursuant to California law. 24 Plaintiff alleges that it is the owner of real property located at 4753 E. Washington Avenue, 25 Fresno, California (the "Property"), by virtue of a foreclosure sale. Plaintiff alleges that Defendant 26 was served with a written notice to quit the property, but Defendant refused to vacate the Property 27 and continues in possession without Plaintiff's permission or consent. As an exhibit to the 28 complaint, Plaintiff attached a copy of the notice to quit served on Defendant, which informed 2 1 Defendant the notice was provided pursuant to the California Law as well as the Protecting 2 Tenants at Foreclosure Act of 2009. (Doc. 1, p. 16.) 3 Defendant claims that Plaintiff's complaint creates a controversy arising under federal law 4 – i.e., Protecting Tenants at Foreclosure Act of 2009 (the "Act") because it was cited in the Notice 5 to Quit served on Defendant and because Plaintiff did not comply with the Act. The only cause of 6 action in the complaint is for unlawful detainer, which arises under California law. The claim 7 itself does not arise under federal law, regardless that the Notice to Quit referenced federal law. 8 See Rubicon Equity Grp., Inc. v. Lawhorn, No. 1:14-cv-00409-LJO-GSA, 2014 WL 1329734, *2 9 (E.D. Cal. Apr. 1, 2014) (unlawful detainer action is a matter of state law). Although Defendant 10 maintains she has a defense under the Act because of improper notice, a defense that invokes 11 federal law is insufficient to confer subject matter jurisdiction under Section 1331. Removal 12 cannot be based on a defense, counterclaim, cross-claim, or third-party claim raising a federal 13 question, whether filed in state or federal court. See Vaden v. Discover Bank, 556 U.S. 49, 59-60 14 (2009); see also Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987) ("a case may not be 15 removed on the basis of a federal defense . . . even if the defense is anticipated in the plaintiff's 16 complaint and both parties concede that the federal defense is the only question truly at issue"). 17 Plaintiff's claim of unlawful detainer arises under state law and not under federal law. As such, 18 there is no jurisdictional basis for removal since an unlawful detainer action, on its face, fails to 19 raise a federal question.1 20 III. 21 CONCLUSION AND ORDER Accordingly, IT IS HEREBY RECOMMENDED that this action be REMANDED to the 22 Fresno County Superior Court. 23 These findings and recommendations are submitted to the district judge assigned to this 24 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 304. Within twenty-one 25 26 27 28 1 Defendant does not assert diversity as a basis on which the Court may exercise subject matter jurisdiction. Nonetheless, the Court notes that under Title 28 U.S.C. Section 1441(b), when an action is founded on diversity, such action "shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b)(2). Defendant specifically asserts that she is a resident of Fresno County, California. (Doc. 1, ¶ 6). As such, Defendant's California residency negates removal jurisdiction based on diversity. 28 U.S.C. § 1441(b)(2). 3 1 (21) days of service of this recommendation, any party may file written objections to these 2 findings and recommendations with the Court and serve a copy on all parties. Such a document 3 should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The 4 district judge will review the magistrate judge's findings and recommendations pursuant to 28 5 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 6 time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, __ F.3d __, __, No. 117 17911, 2014 WL 6435497, at *3 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 8 1391, 1394 (9th Cir. 1991)). 9 10 11 IT IS SO ORDERED. Dated: December 3, 2014 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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