Ryan Family Trust v. Chairez

Filing 4

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 2/5/2014 ORDERING 2 Motion to Proceed IFP is GRANTED; 3 Motion to Shorten Time is DENIED; RECOMMENDING this action be remanded to San Joaquin County Superior C ourt for lack of subject matter jurisdiction, and plaintiff's 3 Motion for Remand be denied as moot; 1 Notice of Removal referred to Judge John A. Mendez; within 14 days after being served, any party may file Objections to F&R; Failure to file objections within the specified time may waive the right to appeal the District Court's order.(Waggoner, D)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RYAN FAMILY TRUST,

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No. 2:14-cv-0097 JAM AC PS

Plaintiff,
v.

ORDER AND

CARMEN CHAIREZ,

FINDINGS & RECOMMENDATIONS

Defendant.

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Plaintiff Ryan Family Trust commenced an unlawful detainer action in San Joaquin

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County Superior Court on May 13, 2013. Notice of Removal (“NOR”), Ex. A. Defendant

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Carmen Chairez removed this action on January 15, 2014 purportedly on the basis of subject

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matter jurisdiction, along with a request to proceed in forma pauperis.

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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).

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Courts “strictly construe the removal statute against removal jurisdiction,” and “the

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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.

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Attached to the Notice of Removal is a copy of the complaint filed by plaintiff in the San

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Joaquin County Superior Court. The complaint contains a single claim for unlawful detainer. In

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defendant’s removal notice, it is asserted that the court has jurisdiction pursuant to, inter alia, the

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Fair Debt Collections Practices Act, 15 U.S.C. §§1692-1692p, the Real Estate Settlement

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Procedure Act, 12 U.S.C. §§ 2601-2617, and the Truth in Lending Act, 15 U.S.C. § 1602,

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regarding the underlying unlawful detainer action. Plaintiff’s complaint for unlawful detainer,

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however, does not state claims under any federal law. Rather, defendant appears to assert that her

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federal rights are at issue by virtue of defendant’s defense to the action.

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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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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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Based on the foregoing, IT IS HEREBY ORDERED that:

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

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2. Plaintiff’s February 4, 2014 motion to shorten time is denied; and

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IT IS HEREBY RECOMMENDED that:

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1. This action be remanded to the San Joaquin County Superior Court for lack of subject

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matter jurisdiction; and
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2. Plaintiff’s February 4, 2014 motion for remand (ECF No. 3) be denied as moot.

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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. Id.; see also Local Rule 304(b). Such a

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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any response to the objections shall be filed with the court and served on all

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parties within fourteen days after service of the objections. Local Rule 304(d). Failure to file

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

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Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57

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(9th Cir. 1991).

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DATED: February 5, 2014

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