Custer v. Spidell

Filing 22

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 9/20/13 DENYING 2 Motion to Proceed; MOOTING 9 Motion to Remand and 16 Motion to Remand; RECOMMENDING that this case be remanded to Sacramento County Superior Court for lack of jurisdiction. Referred to Judge John A. Mendez; Objections to F&R due within 14 days after being served with these findings and recommendations. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRYAN CUSTER,

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Plaintiff,

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No. 2:13-cv-1714 JAM AC PS

v.

ORDER AND

RODNEY SPIDELL,

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FINDINGS & RECOMMENDATIONS

Defendant.

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Plaintiff Bryan Custer commenced an unlawful detainer action in Sacramento County

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Superior Court on June 21, 2013. See Pl.’s Req. for Judicial Notice, Ex. A, ECF No. 13.1

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Defendant Rodney Spidell removed this action on August 20, 2013 purportedly on the basis of

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subject matter jurisdiction, along with a request to proceed in forma pauperis. 2
Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), when a party seeks to proceed in forma

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pauperis, the court shall dismiss the case if the court determines that the plaintiff fails to state a

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claim upon which relief can be granted. A plaintiff fails to state a claim when the court lacks

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jurisdiction over the subject matter of the complaint. See Fed. R. Civ. P. 12(b)(1).
Courts “strictly construe the removal statute against removal jurisdiction,” and “the

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The court takes judicial notice of the complaint pursuant to Federal Rule of Evidence 201(b).
Though required to do so, defendant did not attach to his Notice of Removal a copy of the
complaint filed in the Sacramento County Superior Court. See 28 U.S.C. § 1446(a).
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defendant always has the burden of establishing that removal is proper.” Gaus v. Miles, Inc., 980

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F.2d 564, 566 (9th Cir. 1992). Furthermore, “jurisdiction must be rejected if there is any doubt as

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to the right of removal in the first instance.” Id. Removal is proper only if the court could have

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exercised jurisdiction over the action had it originally been filed in federal court. Caterpillar, Inc.

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v. Williams, 482 U.S. 386, 392 (1987). The “presence or absence of federal-question jurisdiction

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is governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists

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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.” Id. Moreover, “a court may raise the question of subject matter jurisdiction, sua

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sponte, at any time during the pendency of the action.” Snell v. Cleveland, Inc., 316 F.3d 822,

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826 (9th Cir. 2002).

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The complaint filed in Sacramento County Superior Court contains a single claim for

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unlawful detainer. In defendant’s removal notice, it is asserted that the court has jurisdiction

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pursuant to the Protecting Tenants at Foreclosure Act of 2009 (“PFTA”), 12 U.S.C. § 5220. The

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PFTA provides protections to tenants who reside in properties subject to foreclosure, including

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the requirement that a 90-day notice to vacate be given to bona fide tenants. See SD Coastline LP

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v. Buck, 2010 WL 4809661, at *1 (S.D. Cal. Nov.19, 2010) (unpublished). Plaintiff’s complaint

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for unlawful detainer does not state claims under any federal law. Furthermore, it is based on

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non-payment of rent, not foreclosure of the property. See ECF No. 13 at 8. Defendant appears to

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assert the PFTA is at issue by virtue of defendant’s defense to the action.3

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Removal, however, cannot be based on a defense, counterclaim, cross-claim, or third-

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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 v. Philip Morris USA, 582 F.3d 1039, 1042-43 (9th

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Cir. 2009); Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 327 (5th Cir. 1998);

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Preciado v. Ocwen Loan Servicing, 2011 WL 977819, at *1 (C.D. Cal. Mar. 18, 2011); Fed. Nat’l

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Mortg. Ass’n. v. Bridgeman, 2010 WL 5330499, at *4 (E.D. Cal. Dec. 20, 2010). The complaint

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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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indicates that the only cause of action is one for unlawful detainer, which arises under state law

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and not under federal law. Thus, this action does not arise under federal law, and jurisdiction

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under 28 U.S.C. § 1331 does not exist.

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For the reasons set forth above, IT IS HEREBY ORDERED that:

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1. Defendant’s motion to proceed in forma pauperis (ECF No. 2) is denied;

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2. The October 16, 2013 hearing on plaintiff’s motion to remand is vacated;

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3. Plaintiff’s motion to remand (ECF Nos. 9, 16) is denied as moot; and

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IT IS HEREBY RECOMMENDED that this case be remanded to Sacramento County

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Superior Court for lack of jurisdiction.

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These findings and recommendations are submitted to the United States District Judge

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

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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 within

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fourteen days after service of the objections. Defendant is advised that failure to file objections

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within the specified time may waive the right to appeal the District Court’s order.

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DATED: September 20, 2013

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/mb;cust1714.remand

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