OWB REO LLC v. Ciaccio
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 2/3/12: Recommending that the action be remanded to the Nevada County Superior Court. The Clerk be directed to serve a certified copy of this order on the Clerk of the Nevada County Superior Court. The Clerk be directed to close this case. F&R are referred to Judge John A. Mendez. Objections to F&R due within fourteen (14) days. (Kaminski, H).
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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OWB REO LLC,
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Plaintiff,
CIV. NO. S-12-0282 JAM CKD PS
vs.
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ROBERT CIACCIO, et al.,
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Defendants.
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FINDINGS AND RECOMMENDATIONS
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This is an unlawful detainer action that was removed by pro se defendant Robert
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Ciaccio from Nevada County Superior Court on February 2, 2012. (Dkt. No. 1.) It was referred
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to the undersigned pursuant to E.D. Cal. L.R. 302(c)(21). Even if a party does not question the
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court’s subject matter jurisdiction, the court is required to raise and address the issue sua sponte.
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See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31 (1990) (“The federal courts are under
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an independent obligation to examine their own jurisdiction...”). After reviewing the notice of
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removal and its accompanying documents, the court concludes that it lacks subject matter
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jurisdiction over the action.
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Removal jurisdiction statutes are strictly construed against removal. See Libhart
v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). “Federal jurisdiction must be
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rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc.,
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980 F.2d 564, 566 (9th Cir. 1992). “The burden of establishing federal jurisdiction falls on the
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party invoking removal.” Harris v. Provident Life and Accident Ins. Co., 26 F.3d 930, 932 (9th
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Cir. 1994).
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A defendant may remove a civil action from state court to federal district court
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only if the district court has original jurisdiction over the action, i.e. if the action originally could
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have been filed in federal court. See 28 U.S.C. § 1441(a). A district court has original
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jurisdiction over a civil action when: (1) a federal question is presented in an action “arising
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under the Constitution, laws, or treaties of the United States” or (2) there is complete diversity of
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citizenship and the amount in controversy exceeds $75,000. 28 U.S.C. §§ 1331, 1332(a).
In regards to federal question jurisdiction, federal courts have “jurisdiction to
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hear, originally or by removal from a state court, only those cases in which a well-pleaded
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complaint establishes either that federal law creates the cause of action, or that the plaintiff’s
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right to relief necessarily depends on resolution of a substantial question of federal law.”
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Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983). Mere
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reference to federal law is insufficient to permit removal. See Smith v. Industrial Valley Title
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Ins. Co., 957 F.2d 90, 93 (3d Cir. 1992). Also, defenses and counterclaims cannot provide a
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sufficient basis to remove an action to federal court. See Berg v. Leason, 32 F.3d 422, 426 (9th
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Cir. 1994); Takeda v. Northwestern Nat. Life Ins. Co., 765 F.2d 815, 821-22 (9th Cir. 1985); FIA
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Card Servs. v. McComas, 2010 WL 4974113 (S.D. Cal. Dec. 2, 2010).
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Here, removal cannot be based on federal question jurisdiction. The exhibits
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attached to the removal notice establish that the state court action is nothing more than a simple
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unlawful detainer action, and is titled as such. (See Dkt. No. 1 at 5-11. ) According to the
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complaint, plaintiff acquired the subject real property in Grass Valley, California after a non-
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judicial foreclosure sale and is seeking to evict defendants from the property. (Dkt. No. 1 at 8-
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10.) This court has no jurisdiction over unlawful detainer actions, which are strictly within the
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province of the state court.
Defendant Robert Ciaccio contends that federal question jurisdiction exists
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because defendants’ state court demurrer, which was apparently not sustained, depended on the
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determination of defendants’ rights and plaintiff’s duties under federal law, in particular the
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Protecting Tenants at Foreclosure Act (“PTFA”). See Pub. L. No. 111-22, § 702, 123 Stat. 1632
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(2009). A state court demurrer is essentially the equivalent of a motion to dismiss in federal
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court. However, plaintiff’s complaint itself is strictly an action based on the California unlawful
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detainer statutes. Thus, defendant’s reference to the PTFA is best characterized as a potential
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defense or counterclaim, neither of which is considered in evaluating whether a federal question
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appears on the face of a plaintiff’s complaint.
Any defenses based on federal law must generally be raised in the state court
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action and do not provide a basis for removal. “A case may not be removed to federal court on
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the basis of a federal defense,...even if the defense is anticipated in the plaintiff’s complaint, and
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even if both parties admit that the defense is the only question truly at issue in the case.” ARCO
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Environmental Remediation, LLC v. Dept. of Health and Environmental Quality of the State of
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Montana, 213 F.3d 1108, 1113 (9th Cir. 2000); see also Valles v. Ivy Hill Corp., 410 F.3d 1071,
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1075 (9th Cir. 2005) (“A federal law defense to a state-law claim does not confer jurisdiction on
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a federal court, even if the defense is that of federal preemption and is anticipated in the
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plaintiff’s complaint.”) Indeed, several federal district courts in California have specifically held
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that a defense based on the PTFA cannot serve as the basis for removal jurisdiction. See e.g.
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Aurora Loan Services, LLC v. Montoya, 2011 WL 5508926, at *4 (E.D. Cal. Nov. 9, 2011); SD
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Coastline LP v. Buck, 2010 WL 4809661, at **2-3 (S.D. Cal. Nov. 19, 2010); Wescom Credit
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Union v. Dudley, 2010 WL 4916578, at **2-3 (C.D. Cal. Nov. 22, 2010); Aurora Loan Services,
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LLC v. Martinez, 2010 WL 1266887, at *1 (N.D. Cal. March 29, 2010).
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Nor can the action be removed on grounds of diversity jurisdiction. First, the
amount in controversy does not exceed $75,000, because plaintiff’s complaint specifically seeks
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less than $10,000. (Dkt. No. 1 at 8, 10.)1 Second, defendant Ciaccio is a citizen of California,
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and therefore cannot remove the action from a California state court on the basis of diversity
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jurisdiction. See 28 U.S.C. § 1441(b) (“Any civil action of which the district courts have original
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jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the
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United States shall be removable without regard to the citizenship or residence of the parties.
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Any other such action shall be removable only if none of the parties in interest properly joined
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and served as defendants is a citizen of the State in which such action is brought.”) Based on the
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aforementioned analysis, the court finds that remand is appropriate, because there is no subject
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matter jurisdiction.
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For the foregoing reasons, IT IS HEREBY RECOMMENDED that:
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1. The action be remanded to the Nevada County Superior Court;
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2. The Clerk be directed to serve a certified copy of this order on the Clerk of the
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Nevada County Superior Court, and reference the state case number (C11-236) in the proof of
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service; and
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3. The Clerk be directed to close this case.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
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fourteen (14) days after being served with these findings and recommendations, any party may
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file written objections with the court and serve a copy on all parties. Such a document should be
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captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the
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objections shall be served and filed within seven (7) days after service of the objections. The
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Plaintiff essentially seeks possession of the property, as well as reasonable rental value
at $50.00 per day. (Dkt. No. 1 at 10.)
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parties are advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: February 3, 2012
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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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CKD/5
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Ciaccio.282.remud.fr.wpd
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