U.K. Phoenix, LLC v. Shokoor
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 7/12/2012 ORDERING that the hearing scheduled for 7/26/2012 is VACATED. IT IS HEREBY RECOMMENDED that Plaintiff's 3 motion to remand be granted. This action be remanded to the San Joaquin County Superior Court. Motion referred to Judge Kimberly J. Mueller. Objections to F&R due within 14 days. (Zignago, K.)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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U.K. PHOENIX, LLC,
No. CIV 2:12-cv-1706-KJM-JFM (PS)
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Plaintiff,
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vs.
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FARIAL SHOKOOR, et al.,
ORDER AND
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Defendants.
FINDINGS & RECOMMENDATIONS
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/
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Plaintiff U.K. Phoenix, LLC commenced an unlawful detainer action in San
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Joaquin County Superior Court on April 25, 2012 concerning real property located at 2396
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Berryessa Court, Manteca, California (“the subject property”). Notice of Removal (“NOR”) at
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1; Attach. Defendants removed this action on June 27, 2012, purportedly on the basis of federal
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question jurisdiction. Pending before the court is plaintiff’s motion to remand. The court has
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determined that the matter shall be submitted upon the record and briefs on file and accordingly,
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the date for hearing of this matter shall be vacated. Local Rule 230.
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When reviewing a notice of removal, “it is to be presumed that a cause lies
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outside the limited jurisdiction of the federal courts and the burden of establishing the contrary
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rests upon the party asserting jurisdiction.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042
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(9th Cir. 2009) (quoting Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006)
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(internal quotation marks omitted)). “Federal jurisdiction must be rejected if there is any doubt
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as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.
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1992). “If at any time before final judgment it appears that 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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The propriety of removal requires the consideration of whether the district court
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has original jurisdiction of the action; i.e., whether the case could have originally been filed in
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federal court based on a federal question, diversity of citizenship, or another statutory grant of
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jurisdiction. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). If the case is within
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the original jurisdiction of the district court, removal is proper so long as the defendant complied
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with the procedural requirements set forth in 28 U.S.C. § 1446. If the case is not within the
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original jurisdiction of the district court, removal is improper. The absence of subject matter
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jurisdiction is not waivable by the parties. See Am. Fire & Cas. Co. v. Finn, 341 U.S. 6 (1951).
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With the Notice of Removal, defendants provides a copy of the complaint filed in
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San Joaquin County Superior Court. The complaint contains a single claim for unlawful
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detainer. In defendants’ removal notice, it is asserted that the court has jurisdiction pursuant to
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the Protecting Tenants at Foreclosure Act of 2009 (“PFTA”), 12 U.S.C. § 5220. The PFTA
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provides protections to tenants who reside in properties subject to foreclosure, including the
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requirement that a 90–day notice to vacate be given to bona fide tenants. See SD Coastline LP v.
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Buck, 2010 WL 4809661, at *1 (S.D. Cal. Nov.19, 2010) (unpublished). Not only is the PFTA
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inapposite, as defendant Farial Shokoor admits to being the former owner of the subject
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property, see NOR at 1, but plaintiff’s complaint for unlawful detainer does not state claims
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under any federal law. Rather, defendants appear to assert the PFTA is at issue by virtue of
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defendants’ defense to the action.1
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Additionally, federal district courts have concluded that the PFTA does not create a
federal private right of action, but provides directives to state courts. See, e.g., Deutsche Bank
Nat'l Trust Co. v. Jora, 2010 WL 3943584, at *1 n.3 (E.D. Cal. Oct.1, 2010); Zalemba v. HSBC
Bank, USA, Nat'l Ass'n, 2010 WL 3894577, at *2 (S.D. Cal. Oct. 1, 2010).
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Removal, however, cannot be based on a defense, counterclaim, cross-claim, or
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third-party claim raising a federal question, whether filed in state or federal court. See Vaden v.
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Discover Bank, 556 U.S. 49 (2009); Hunter, 582 F.3d at 1042-43; Metro Ford Truck Sales, Inc.
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v. Ford Motor Co., 145 F.3d 320, 327 (5th Cir. 1998); Preciado v. Ocwen Loan Servicing, 2011
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WL 977819, at *1 (C.D. Cal. Mar. 18, 2011); Fed. Nat'l Mortg. Ass'n. v. Bridgeman, 2010 WL
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5330499, at *4 (E.D. Cal. Dec. 20, 2010). The complaint indicates that the only cause of action
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is one for unlawful detainer, which arises under state law and not under federal law. Thus, this
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action does not arise under federal law, and jurisdiction under 28 U.S.C. § 1331 does not exist.
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Accordingly, IT IS HEREBY ORDERED that the hearing scheduled for July 26,
2012 is vacated; and
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IT IS HEREBY RECOMMENDED that:
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1. Plaintiff’s motion to remand be granted; and
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2. This action be remanded to the San Joaquin County Superior Court.
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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, defendant may file written
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objections with the court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Any response to the objections shall be filed and served
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within fourteen days after service of the objections. Defendant is advised that failure to file
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objections within the specified time may waive the right to appeal the District Court’s order.
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DATED: July 12, 2012.
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