Federal National Mortgage Association v. Eugene, et. al.

Filing 3

ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 9/10/12 ORDERED that Judy Eugene's application to proceed in forma pauperis 2 is denied; and RECOMMENDING that this action be summarily remanded to the Superior Court of California, County of Sacramento and this case be closed. Referred to Judge Kimberly J. Mueller; Objections due within 14 days after being served with these findings and recommendations. (Becknal, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FEDERAL NATIONAL
MORTGAGE ASSOCIATION,
et al.,

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Plaintiffs,

No. 12-cv-1353 KJM DAD PS

vs.
JOHN H. EUGENE, JR.;
JUDY EUGENE,

ORDER AND
FINDINGS AND RECOMMENDATIONS

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Defendants.

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This civil action was opened when, on May 18, 2012, John Eugene, Jr. and Judy

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Eugene, proceeding pro se, filed with this court, among other things, a document styled

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“JUDICIAL NOTICE OF ADJUDICATIVE FACTS.” (Doc. No. 1 at 1.) However, from that

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filing it is unclear with the Eugenes are attempting to initiate a new action or seeking to remove

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an action filed against in state court them by the Federal National Mortgage Association (Fannie

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Mae). The action has therefore been referred to the undersigned in accordance with Local Rule

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302(c)(21) and 28 U.S.C. § 636(b)(1).

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A filing fee of $350.00 is required to commence a civil action in a federal district
court. 28 U.S.C. § 1914(a). The court may authorize the commencement of an action without
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prepayment of fees or security therefor by a litigant who submits an affidavit demonstrating

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inability to pay. 28 U.S.C. § 1915(a). Judy Eugene has filed an application to proceed in forma

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pauperis. (Doc. No. 2.) The court finds, however, that Judy Eugene has failed to make the

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showing required by 28 U.S.C. § 1915.

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In this regard, Judy Eugene indicates that she receives wages of $650 per week,

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has $500 in cash or in a checking or savings account, owns “automobiles,” and that her regularly

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monthly expenses consist only of “utilities.” (Doc. No. 2 at 2.) Although Judy Eugene’s

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application names two persons who are dependent upon her for support, she does not state how

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much she contributes to their support. In this regard, Judy Eugene has not demonstrated that she

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is unable to pay the $350 filing fee for this action.

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Moreover, even if she were to make such a showing, the court would not grant her

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leave to proceed in forma pauperis unless John Eugene, Jr., also demonstrated indigence. In this

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regard, filing fees must be paid unless each party applies for and is granted leave to proceed in

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forma pauperis. Accordingly, Judy Eugene’s application to proceed in forma pauperis will be

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denied.

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Turning to the documents filed by the Eugenes, the court notes that the Civil

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Cover Sheet filed by defendants indicates that the origin of this action is “Removed from State

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Court.” (Doc. No. 1-4 at 1.) It is well established that the statutes governing removal

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jurisdiction must be “strictly construed against removal.” Libhart v. Santa Monica Dairy Co.,

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592 F.2d 1062, 1064 (9th Cir. 1979) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,

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108 (1941)). “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, Inc., 980 F.2d 564, 566 (9th Cir. 1992). “‘The

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burden of establishing federal jurisdiction falls on the party invoking removal.’” Harris v.

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Provident Life & Accident Ins. Co., 26 F.3d 930, 932 (9th Cir. 1994) (quoting Gould v. Mut. Life

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Ins. Co., 790 F.2d 769, 771 (9th Cir.1986)). Moreover, “the existence of federal jurisdiction

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depends solely on the plaintiff’s claims for relief and not on anticipated defenses to those
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claims.” ARCO Envtl. Remediation, LLC v. Dep’t of Health & Envtl. Quality, 213 F.3d 1108,

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1113 (9th Cir. 2000). Where it appears that the district court lacks subject matter jurisdiction

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over a removed case, “the case shall be remanded.” 28 U.S.C. § 1447(c).

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Here, in addition to roughly 100 pages of exhibits, the Eugenes have filed a

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largely incoherent document styled “JUDICIAL NOTICE OF ADJUDICATIVE FACTS.” (Doc.

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No. 1 at 1.) That document refers to “Unlawful Detainer Case Number: 11UD09909.” (Id. at 7.)

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Moreover, attached to the “JUDICIAL NOTICE OF ADJUDICATIVE FACTS” are several

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documents from an unlawful detainer action filed in the Sacramento County Superior Court,

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bearing Case No. 11UD09909, including the Eugenes answer to Fannie Mae’s complaint filed in

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the Sacramento County Superior Court. (Id. at 15, 22, 25.) Not included with the Eugenes’

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filing, however, is a copy of the complaint filed in that state court action.

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Nonetheless, it is evident from the number assigned to the case in state court and

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the documents filed by the Eugenes that the matter is an unlawful detainer action. The court

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finds that the Eugenes have failed to demonstrate that Fannie Mae’s state court complaint alleges

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any claims other than those typically alleged in a garden-variety unlawful detainer action filed by

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a property owner against the former owner of property located in California, based wholly on

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California law. The Eugenes have not shown that Fannie Mae’s complaint involves any “claim

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or right arising under the Constitution, treaties or laws of the United States” that would have

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permitted Fannie Mae to file this action originally in federal court. See 28 U.S.C. § 1441(b).

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Accordingly, the court finds that the Eugenes have failed to meet their burden of
establishing a basis for federal jurisdiction.

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IT IS HEREBY ORDERED that Judy Eugene’s application to proceed in forma
pauperis (Doc. No. 2) is denied.

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IT IS HEREBY RECOMMENDED that this action be summarily remanded to the

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Superior Court of California, County of Sacramento and this case be closed.

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/////
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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 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, the Eugenes may file any

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written objections with the court.1 A document presenting objections should be titled

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“Objections to Magistrate Judge’s Findings and Recommendations.”

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DATED: September 10, 2012.

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DAD:6
Ddad1\orders.pro se\FNMA-eugene1353.f&r.remand.ud

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If the Eugenes are not attempting to remove the state court action filed against them to
this court but instead attempting to initiate a new action of their own, they may so explain in any
objections they elect to file to these findings and recommendations.
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