US Bank National Association v. Mejia, et al

Filing 3

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 4/4/13: RECOMMENDING that this action be summarily remanded to the Tuolumne County Superior Court and that this case be closed. F&R referred to Judge Morrison C. England, Jr.. Objections to F&R due within fourteen 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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US BANK NATIONAL ASSOCIATION
TRUSTEE FOR ADJUSTABLE RATE
MORTGAGE TRUST 2005-12,
ADJUSTABLE RATE MORTGAGE
BACKED PASS THROUGH CERTIFICATES,
SERIES 2005-12,

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Plaintiff,

Case No. 2:13-cv-0645 MCE DAD PS

vs.
ALVARO MEJIA;
DOLORES MEJIA,

FINDINGS AND RECOMMENDATIONS

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Defendants.
/
By Notice of Removal filed April 3, 2013, this unlawful detainer action was

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removed from the Tuolumne County Superior Court by defendant Alvaro Mejia, who has paid

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the required filing fee and who is proceeding pro se. Accordingly, the matter has been referred to

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the undersigned for all purposes encompassed by Local Rule 302(c)(21).

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At the outset, defendants are advised that one party proceeding pro se may not

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represent any other party proceeding pro se. See Local Rule 183. Thus, each document

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submitted for filing by defendants must bear the signatures of all defendants. In this regard, the
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Notice of Removal should have been signed by each of the two defendants, but was signed only

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by defendant Alvaro Mejia. See United Computer Systems, Inc. v. AT & T Corp., 298 F.3d 756,

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762 (9th Cir. 2002) (“[T]he usual rule is that all defendants in an action in a state court must join

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in a petition for removal . . .”).

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Moreover, it is well established that the statutes governing removal jurisdiction

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must be “strictly construed against removal.” Libhart v. Santa Monica Dairy Co., 592 F.2d 1062,

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1064 (9th Cir. 1979) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941)).

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See also Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002); Provincial Gov’t of

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Martinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). “Federal jurisdiction

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must be rejected if there is any doubt as to the right of removal in the first instance.” Gaus v.

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Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). “‘The burden of establishing federal jurisdiction

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falls on the party invoking removal.’” Harris v. Provident Life & Accident Ins. Co., 26 F.3d 930,

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932 (9th Cir. 1994) (quoting Gould v. Mut. Life Ins. Co., 790 F.2d 769, 771 (9th Cir.1986)). See

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also Provincial Gov’t of Martinduque, 582 F.3d at 1087. In addition, “the existence of federal

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jurisdiction depends solely on the plaintiff’s claims for relief and not on anticipated defenses to

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those claims.” ARCO Envtl. Remediation, LLC v. Dep’t of Health & Envtl. Quality, 213 F.3d

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1108, 1113 (9th Cir. 2000). Where it appears, as it does here, that the district court lacks subject

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

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In removing this action, defendant Alvaro Mejia alleges that “Federal question

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jurisdiction exists because Defendants’ demurrer, a pleading depend (sic) on the determination of

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Defendants’ rights and Plaintiff’s duties under federal law.” (Notice of Removal (Doc. No. 1) at

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3.) Specifically, defendant Alvaro Mejia alleges that plaintiff has “failed to comply” with 12

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U.S.C. § 5220. (Id. at 2.)

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It is evident, however, from a reading of plaintiff’s complaint that this is nothing

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more than a garden-variety unlawful detainer action filed against the former owner of real

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property located in California and that it is based wholly on California law. As such, the
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complaint does not involve any “claim or right arising under the Constitution, treaties or laws of

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the United States” that would have permitted plaintiff to file this action originally in federal

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court. See 28 U.S.C. § 1441(b). Moreover, it is evident from defendant Alvaro Mejia’s Notice

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of Removal that any federal claims in this action arise solely from defendants’ own affirmative

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defenses and not from the plaintiff’s unlawful detainer complaint. See ARCO Envtl.

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Remediation, LLC, 213 F.3d at 1113. Thus, defendant Alvaro Mejia has failed to meet his

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burden of establishing a basis for federal jurisdiction over this action.

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Accordingly, IT IS RECOMMENDED that this action be summarily remanded to
the Tuolumne County Superior Court and that this case be closed.
These findings and recommendations will be submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within

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fourteen days after being served with these findings and recommendations, any party may file

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written objections with the court and serve a copy on all parties. A document presenting

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objections should be titled “Objections to Magistrate Judge’s Findings and Recommendations.”

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Any reply to objections shall be filed and served within seven days after service of the objections.

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The parties are advised that failure to file objections within the specified time may waive the

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right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: April 4, 2013.

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