Delgado et al v. National City Mortgage et al

Filing 22

ORDER igned by Judge Garland E. Burrell, Jr. on 01/26/12 ORDERING that since PNC has failed to sustain its burden of showing the existence of federal question or diversity removal jurisdiction, this case is REMANDED to the Superior Court of the County of San Joaquin from which it was removed for lack of subject matter jurisdiction. Copy of remand order sent to other court. CASE CLOSED (Benson, A.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE CRUZBERTO DELGADO and MARIA
DE LA LUZ DELGADO,

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Plaintiffs,

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v.

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NATIONAL CITY MORTGAGE; NATIONAL
CITY BANK; PNC BANK, N.A.; GREEN
TREE SERVICING, LLC; and DOES 1
through 100 inclusive,

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Defendants.
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2:11-cv-01258-GEB-KJN
ORDER

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Defendant PNC Bank, National Association (“PNC”) removed this

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case from state court, arguing that both federal question and diversity

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jurisdiction justified removal. (Notice of Removal (“NOR”) 2:10-21, ECF

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No. 1.) However, PNC has not sustained its burden of showing the

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existence of removal jurisdiction.

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“There is a strong presumption against removal jurisdiction,

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and the removing party has the burden of establishing that removal is

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proper.” Lindley Contours, LLC v. AABB Fitness Holdings, Inc., 414 Fed.

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Appx. 62, 64 (9th Cir. 2011) (internal quotation marks omitted).

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PNC argues in its Notice of Removal that complete diversity of

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citizenship exists because, inter alia, “Defendant Green Tree Servicing,

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LLC is a corporation incorporated under the laws of the State of

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Delaware,

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Minnesota.” (NOR 2:22-26.) However, PNC has not sufficiently alleged the

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citizenship of Defendant Green Tree Servicing, LLC. “For purposes of

with

its

principal

place

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of

business

in

the

State

of

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diversity jurisdiction, . . . a limited liability corporation is a

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citizen of all of the states of which its owners/members are citizens.”

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Lindley, 414 Fed. Appx. at 64 (citation omitted). “[T]he citizenship of

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all members of limited liability corporations . . . [must] be alleged.”

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Id.

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PNC also argues in its notice of removal that “[t]his action

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is a civil action of which this Court has original jurisdiction under 28

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U.S.C. Section 1331 . . . in that it arises under the Federal Truth in

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Lending Act [TILA] . . . , Code of Federal Regulations [CFR] . . . , and

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the Real Estate Settlement Procedures Act [RESPA] . . . .” (NOR 2:10-

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15.) However, Plaintiffs do not allege any TILA, RESPA or CFR claims in

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their Complaint and PNC has not shown that any of Plaintiffs’ state

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claims arise under federal law.

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28 U.S.C. § 1331 prescribes that “district courts shall have

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original

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Constitution, laws, or treaties of the United States.” “‘Arising under’

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federal jurisdiction only arises . . . when the federal law does more

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than just shape a court’s interpretation of state law; the federal law

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must be at issue.” Int’l Union of Operating Eng’rs v. Cnty. of Plumas,

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559 F.3d 1041, 1045 (9th Cir. 2009). “[A] case arises under . . .

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[federal law when] a right . . . created by [that law is] an element,

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and an essential one, of the plaintiff's cause of action.” Id. at 1044

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(quoting Gully v. First Nat’l Bank, 299 U.S. 109, 112 (1936)).

jurisdiction

of

all

civil

actions

arising

under

the

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“The . . . ‘well-pleaded complaint rule’ . . . provides that

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federal jurisdiction exists only when a federal question is presented on

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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) (quoting Audette v.

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Int’l Longshoremen’s & Warehousemen’s Union, 195 F.3d 1107, 1111 (9th
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Cir. 1999)). “The [well-pleaded complaint] rule makes the plaintiff the

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master of [his] claim[s]; he . . . may avoid federal jurisdiction by

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exclusive reliance on state law.” Caterpillar, Inc. v. Williams, 482

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U.S. 386, 392 (1987).

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Since PNC has failed to sustain its burden of showing the

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existence of federal question or diversity removal jurisdiction, this

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case is remanded to the Superior Court of the County of San Joaquin from

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which it was removed for lack of subject matter jurisdiction. See 28

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U.S.C. § 1447(c) (prescribing that the case shall be remanded “when it

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appears that the district court lacks subject matter jurisdiction
. . . .”).
Dated:

January 26, 2012

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GARLAND E. BURRELL, JR.
United States District Judge

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