Abu v. U.S. Bank Association et al

Filing 4

FINDINGS and RECOMMENDATIONS, recommending that action be summarily remanded to Superior Court of California, County of Sacramento, signed by Magistrate Judge Carolyn K. Delaney on 9/11/2013. These Findings and Recommendations are SUBMITTED to District Judge Kimberly J. Mueller. Within 14 days after being served with these F/Rs, any party may file written Objections with Court and serve a copy on all parties. (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FELIX ABU,

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No. 2:13-cv-1848 KJM CKD PS
Plaintiff,

v.

FINDINGS AND RECOMMENDATIONS

U.S. BANK ASSOCIATION, et al.,
Defendants.

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This action was removed from state court. Removal jurisdiction statutes are strictly

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construed against removal. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir.

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1979). “Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the

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first instance.” Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). The party invoking removal

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bears the burden of establishing federal jurisdiction. Hunter v. Philip Morris USA, 582 F.3d 1039

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(9th Cir. 2009). Where it appears the district court lacks subject matter jurisdiction, the case shall

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be remanded. 28 U.S.C. § 1447(c).

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In conclusory fashion, the removal petition alleges the complaint is subject to federal

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question jurisdiction. Removal based on federal question jurisdiction is proper only when a

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federal question is presented on the face of the plaintiff’s properly pleaded complaint. Caterpillar

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Inc. v. Williams, 482 U.S. 386, 392 (1987). The exhibits attached to the removal petition are

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confusing in that it appears plaintiff has removed two actions simultaneously to this court. In the
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first, case number 34-2013-00149942, plaintiff Felix Abu is the named plaintiff and alleges

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claims for wrongful foreclosure, quiet title and other related state causes of action against

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defendant U.S. Bank Association. Under 28 U.S.C. § 1441(a), only defendants may remove an

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action to federal court. This action was therefore improvidently removed.

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The other action removed to this court is case number 12UD04948, with U.S. Bank

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National Association the named plaintiff . The exhibits attached to the removal petition establish

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this state court action is nothing more than a simple unlawful detainer action, and the state court

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action is titled as such. Defendant has failed to meet his burden of establishing federal

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jurisdiction for this action and the matter should therefore be remanded. See generally Singer v.

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State Farm Mutual Automobile Insurance Co., 116 F.3d 373, 375-376 (9th Cir. 1997).
Accordingly, IT IS HEREBY RECOMMENDED that the above-entitled action be
summarily remanded to the Superior Court of California, County of Sacramento.

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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, 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 advised

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that failure to file objections within the specified time may waive the right to appeal the District

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

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Dated: September 11, 2013

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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4 abu-usbank1848.remud

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