Blue Mountain Homes LLC v. Bell et al
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 8/19/2011 ORDERING defendant Renee Bell's 2 motion to proceed informa pauperis is DENIED without prejudice. It is recommending that this action be summarily remanded to the Solona Superior Court and this case be closed; referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations.(Duong, D)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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BLUE MOUNTAIN HOMES LLC,
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Plaintiff,
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No. CIV S-11-2155 KJM DAD PS
vs.
RONNIE D. BELL, et al.,
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ORDER AND
Defendants.
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FINDINGS AND RECOMMENDATIONS
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By Notice of Removal filed August 15, 2011, this unlawful detainer action was
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removed from Solano County Superior Court by defendant Renee L.H. Bell, who is proceeding
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pro se.1 Accordingly, the matter has been referred to the undersigned for all purposes
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encompassed by Local Rule 302(c)(21).
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Defendant Renee L.H. Bell has filed an incomplete motion to proceed in forma
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pauperis. In the absence of complete information about defendant’s income, defendant has failed
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to make the showing required by 28 U.S.C. § 1915. The motion will be denied without prejudice
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on that ground.
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Named defendant Ronnie D. Bell has not joined in the removal.
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It is well established that the statutes governing removal jurisdiction must be
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“strictly construed against removal.” Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064
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(9th Cir. 1979) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941)).
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“Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first
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instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). “‘The burden of establishing
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federal jurisdiction falls on the party invoking removal.’” Harris v. Provident Life & Accident
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Ins. Co., 26 F.3d 930, 932 (9th Cir. 1994) (quoting Gould v. Mut. Life Ins. Co., 790 F.2d 769,
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771 (9th Cir.1986)). Moreover, “the existence of federal jurisdiction depends solely on the
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plaintiff’s claims for relief and not on anticipated defenses to those claims.” ARCO Envtl.
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Remediation, LLC v. Dep’t of Health & Envtl. Quality, 213 F.3d 1108, 1113 (9th Cir. 2000).
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Where it appears that the district court lacks subject matter jurisdiction over a removed case, “the
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case shall be remanded.” 28 U.S.C. § 1447(c).
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In conclusory fashion, defendant Renee Bell alleges as follows in her notice of
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removal: plaintiff filed an unlawful detainer action in Solano County Superior Court; defendant
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Renee Bell filed a demurrer alleging that plaintiff’s notice to vacate premises did not comply
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with The Protecting Tenants at Foreclosure Act, 12 U.S.C. § 5220; the state court did not sustain
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defendant Renee Bell’s demurrer. (Notice of Removal (Doc. No. 1) at 1-2.) Defendant argues
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that “[f]ederal question jurisdiction exists because Defendants’ demurrer, a pleading, depend
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[sic] on the determination of Defendants’ rights and Plaintiff’s duties under federal law.” (Id. at
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3.)
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Defendant’s notice of removal includes a copy of plaintiff’s complaint (Id., Ex.
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A.) It is evident from plaintiff’s complaint that this action is nothing more than a garden-variety
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unlawful detainer action filed against the former owner of real property located in California and
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based wholly on California law. Plaintiff’s complaint does not involve any “claim or right
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arising under the Constitution, treaties or laws of the United States” that would have permitted
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plaintiff to file this action originally in federal court. See 28 U.S.C. § 1441(b). Defendant’s own
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argument demonstrates that if there is any federal claim in this action it arises solely from the
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affirmative defense alleged by defendant Renee Bell and not from the claims alleged in plaintiff’s
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unlawful detainer complaint.
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For the reasons set forth above, the court finds that defendant Renee L.H. Bell has
failed to meet the burden of establishing a basis for federal jurisdiction.
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IT IS HEREBY ORDERED that defendant Renee Bell’s motion to proceed in
forma pauperis (Doc. No. 2) is denied without prejudice; and
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IT IS RECOMMENDED that this action be summarily remanded to the Superior
Court of California, County of Solano and this case be closed.
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These findings and recommendations will be submitted to the United States
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District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within
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fourteen days after being served with these findings and recommendations, any party may file
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written objections with the court and serve a copy on all parties. A document presenting
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objections should be titled “Objections to Magistrate Judge’s Findings and Recommendations.”
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Any reply to objections shall be filed and served within seven days after service of the objections.
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DATED: August 19, 2011.
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