Bank of New York Mellon v. Kut
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/6/11 RECOMMENDING that this action be summarily remanded to the Superior Court of California, County of Sacramento. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days after being served with these findings and recommendations. (Meuleman, 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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BANK OF NEW YORK MELLON,
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Plaintiff,
No. CIV S-11-3205 GEB CKD PS
vs.
NIKOLAY KUT, et al.,
Defendants.
FINDINGS AND RECOMMENDATIONS
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This action was removed from state court. Removal jurisdiction statutes are
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strictly construed against removal. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064
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(9th Cir. 1979). “Federal jurisdiction must be rejected if there is any doubt as to the right of
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removal in the first instance.” Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). “The burden of
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establishing federal jurisdiction falls on the party invoking removal.” Harris v. Provident Life
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and Accident Ins. Co., 26 F.3d 930 (9th Cir.1994) (quoting Gould v. Mut. Life Ins. Co. of New
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York, 790 F.2d 769, 771 (9th Cir.1986)). Where it appears the district court lacks subject matter
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jurisdiction, the case shall be remanded. 28 U.S.C. § 1447(c).
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In conclusory fashion, the removal petition alleges the complaint is subject to
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federal question jurisdiction. Removal based on federal question jurisdiction is proper only when
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a federal question is presented on the face of the plaintiff’s properly pleaded complaint.
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Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). However, the exhibits attached to the
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removal petition establish the state court action is nothing more than a simple unlawful detainer
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action, and the state court action is titled as such. Defendants have failed to meet their burden of
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establishing federal jurisdiction and the matter should therefore be remanded. See generally
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Singer v. State Farm Mutual Automobile Insurance Co., 116 F.3d 373, 375-376 (9th Cir. 1997).
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Accordingly, IT IS HEREBY RECOMMENDED that the above-entitled action be
summarily remanded to the Superior Court of California, County of Sacramento.
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These findings and recommendations are submitted to the United States District
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen
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days after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
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shall be served and filed within seven days after service of the objections. The parties are
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advised that failure to file objections within the specified time may waive the right to appeal the
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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: December 6, 2011
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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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