Bank of America NA v. Stansell
Filing
3
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 11/20/2012 RECOMMENDING that this action be remanded to the Yuba County Superior Court. The Clerk be directed to serve a certified copy of this order on the Clerk of the Yuba County Superior Court, and reference the state case number (YCSCCVUD 12-0000331) in the proof of service and the Clerk be directed to close this case. Referred to Judge Garland E. Burrell, Jr.. Objections to F&R due within 14 days. (Zignago, K.)
1
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE EASTERN DISTRICT OF CALIFORNIA
8
9
BANK OF AMERICA, N.A.,
Successor by Merger to BAC Home Loans
Servicing, LP fka Countrywide Home
Loans Servicing, LP,
10
Plaintiff,
No. 2:12-cv-2802 GEB GGH PS
11
vs.
12
BRENDA STANSELL,
13
FINDINGS AND RECOMMENDATIONS
14
15
16
Defendant.
/
This action was referred to the undersigned pursuant to E.D. Cal. L.R. 302(c)(21).
17
It was removed from state court on November 15, 2012. Nevertheless, a district court has “a
18
duty to establish subject matter jurisdiction over [a] removed action sua sponte, whether the
19
parties raised the issue or not.” United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d
20
960, 966 (9th Cir. 2004); see also Kelton Arms Condominium Assoc., Inc. v. Homestead Ins.
21
Co., 346 F.3d 1190, 1192 (9th Cir. 2003). Having reviewed the notice of removal, the court
22
finds that the action should be remanded to state court due to lack of subject matter jurisdiction.
23
Removal jurisdiction statutes are strictly construed against removal. See Libhart
24
v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). “Federal jurisdiction must be
25
rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, 980
26
F.2d 564, 566 (9th Cir. 1992). “The burden of establishing federal jurisdiction falls on the party
1
1
invoking removal.” Harris v. Provident Life and Accident Ins. Co., 26 F.3d 930 (9th Cir. 1994),
2
overruled on other grounds by Leeson v. Transamerica Disability Income Plan, 671 F.3d 969,
3
979 (9th Cir. 2012).
4
A plaintiff may bring suit in federal court if his claim “arises under” federal law.
5
28 U.S.C. § 1331. In that situation, the court has original jurisdiction. A state court defendant
6
cannot invoke the federal court’s original jurisdiction. But he may in some instances invoke the
7
court’s removal jurisdiction. The requirements to invoke removal jurisdiction are often identical
8
to those for invoking its original jurisdiction. The requirements for both relate to the same end,
9
that is, federal jurisdiction.
10
Removal of a state court action is proper only if it originally could have been filed
11
in federal court. 28 U.S.C. § 1441. “[F]ederal courts have jurisdiction to hear, originally or by
12
removal, only those cases in which a well-pleaded complaint establishes either that federal law
13
creates the cause of action, or that the plaintiff’s right to relief necessarily depends on resolution
14
of a substantial question of federal law.” Franchise Tax Board v. Construction Laborers
15
Vacation Trust, 463 U.S. 1, 27-28, 103 S. Ct. 2841, 2855-56 (1983). Mere reference to federal
16
law is insufficient to permit removal. See Smith v. Industrial Valley Title Ins. Co., 957 F.2d 90,
17
93 (3d Cir. 1992). Also, defenses and counterclaims cannot provide a sufficient basis to remove
18
an action to federal court. See Berg v. Leason, 32 F.3d 422, 426 (9th Cir. 1994); FIA Card Servs.
19
v. McComas, 2010 WL 4974113 (S.D. Cal. Dec. 2, 2010) (remanding action removed by
20
defendant on the basis that defendant’s counterclaim raised a federal question).
21
Here, the exhibits attached to the removal petition establish that the state court
22
action is nothing more than a simple unlawful detainer action, and is titled as such. (See Dkt.
23
No. 1, at pp. 9-13.) This court has no jurisdiction over unlawful detainer actions which are
24
strictly within the province of the state court. Defendant’s removal petition also asserts that her
25
demurrer to the complaint was based on the Protecting Tenants at Foreclosure Act, apparently
26
challenging the foreclosure proceedings related to her property, and therefore this court has
2
1
federal subject matter jurisdiction. However, as discussed above, counterclaims or defenses
2
cannot provide a sufficient basis to remove the action to federal court. Based on the
3
aforementioned analysis, the court finds that remand is appropriate, because there is no subject
4
matter jurisdiction.
5
For the foregoing reasons, IT IS HEREBY RECOMMENDED that:
6
1. The action be remanded to the Yuba County Superior Court;
7
2. The Clerk be directed to serve a certified copy of this order on the Clerk of the
8
Yuba County Superior Court, and reference the state case number (YCSCCVUD 12-0000331) in
9
the proof of service; and
10
3. The Clerk be directed to close this case.
11
These findings and recommendations are submitted to the United States District
12
Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
13
fourteen (14) days after being served with these findings and recommendations, any party may
14
file written objections with the court and serve a copy on all parties. Such a document should be
15
captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the
16
objections shall be served and filed within seven (7) days after service of the objections. The
17
parties are advised that failure to file objections within the specified time may waive the right to
18
appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
19
DATED: November 20, 2012
20
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
21
22
23
GGH/076
BofA2802..rem.wpd
24
25
26
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?