Federal National Mortgage Association v. Vielma, et al.

Filing 3

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 9/2/14 ORDERING that the motion to proceed in forma pauperis (ECF No. 2 ) is DENIED without prejudice; and it is RECOMMENDED that the above- entitled action be summarily remanded to the Superior Court of California, County of Sacramento. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
Plaintiff,

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No. 2:14-cv-1982 JAM CKD PS

ORDER AND
v.
FINDINGS AND RECOMMENDATIONS
MARTHA VIELMA, 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 burden of establishing

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federal jurisdiction falls on the party invoking removal.” Harris v. Provident Life and Accident

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Ins. Co., 26 F.3d 930 (9th Cir.1994) (quoting Gould v. Mut. Life Ins. Co. of New York, 790 F.2d

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769, 771 (9th Cir.1986)). Where it appears the district court lacks subject matter jurisdiction, the

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case shall 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). However, the exhibits attached to the removal

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petition establish the state court action is nothing more than a simple unlawful detainer action,

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and the state court action is titled as such. Defendants have failed to meet their burden of

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establishing federal jurisdiction and the matter should therefore be remanded. See generally

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Singer v. State Farm Mutual Automobile Insurance Co., 116 F.3d 373, 375-376 (9th Cir. 1997).

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Defendant Angelo Vivanco has filed a motion to proceed in forma pauperis. Because the

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court will recommend remand of this action and defendant Martha Vielma has not joined in the

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petition to proceed in forma pauperis,1 the motion will be denied without prejudice.

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Accordingly, IT IS HEREBY ORDERED that the motion to proceed in forma pauperis
(ECF No. 2) is denied without prejudice; and

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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 2, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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4 fnma-vielma.ifp.remud

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This defendant also did not join in the removal petition.
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