Capretto v. Bank of America N.A et al

Filing 4

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/3/12 RECOMMENDING that 1 Complaint be summarily remanded to the Superior Court of California, County of Solano. Referred to Judge Morrison C. England, Jr.; Objections to F&R due 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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ROBERT CAPRETTO,

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Plaintiff,

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No. CIV S-12-2012 MCE CKD PS

vs.
BANK OF AMERICA, 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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The removal petition is confusing in that it references removal of two actions, one

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of which appears to be an unlawful detainer action and the other of which was filed by plaintiff

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himself in state court. In conclusory fashion, the removal petition alleges the complaint is
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subject to federal question jurisdiction. Removal based on federal question jurisdiction is proper

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only when a federal question is presented on the face of the plaintiff’s properly pleaded

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complaint. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). To the extent plaintiff is

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attempting to remove an unlawful detainer action, the removing petitioner has failed to meet his

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burden of establishing federal jurisdiction and the matter should therefore be remanded. See

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generally Singer v. State Farm Mutual Automobile Insurance Co., 116 F.3d 373, 375-376 (9th

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Cir. 1997). To the extent that plaintiff is attempting to remove an action filed in state court by

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himself, there is no basis for removal in that only defendants may remove an action to federal

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court. See 28 U.S.C. § 1441(a).

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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 Solano.

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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, 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: August 3, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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