Rivera et al v. Streamline Funding, Inc. et al

Filing 24

ORDER REMANDING ACTION TO STATE COURT, Motions terminated: 14 MOTION to Amend/Correct NOTICE OF MOTION TO DISMISS COMPLAINT FOR FAILURE TO STATE A CLAIM AND MOTION TO STRIKE filed by MortgageIT Inc, 19 First MOTION to Remand Action to State Court filed by Cristina Rivera, Ferdinand Rivera. Signed by Judge Alsup on December 6, 2010. (whalc2, COURT STAFF) (Filed on 12/6/2010)

Rivera et al v. Streamline Funding, Inc. et al

Doc. 24

1 2 3 4 5 6 7 8 9 10 FERDINAND RIVERA and CRISTINA RIVERA, Plaintiffs, v. ONEWEST BANK, FSB, Defendant. / No. C 10-04538 WHA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ORDER REMANDING ACTION TO STATE COURT

Plaintiffs filed this action in state court, alleging seven state-law claims. Defendant MortgageIt Inc. removed the action on October 7, 2010. The notice of removal stated "Plaintiffs [sic] claims appear to be based upon alleged violations of federal statutes . . ." even though plaintiffs did not state any federal claims. Only two defendants, MortgageIt Inc. and OneWest Bank, FSB, were served with the complaint or not dismissed prior to removal. OneWest Bank filed a joinder to MortgageIt's notice of removal. MortgageIt noticed a motion to dismiss for a hearing on December 16. OneWest Bank filed a joinder to the motion. Meanwhile, plaintiffs noticed a motion to remand for a hearing on December 9. Plaintiffs dismissed MortgageIt from the action on November 17, and on November 19 MortgageIt filed a notice of withdrawal of its motion to dismiss. In the interim, OneWest Bank did not file an opposition or statement of nonopposition to plaintiffs' motion to remand, which was due on November 18, 2010, pursuant to Civil Local Rule 7-3.

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10

Nevertheless, by prior order OneWest Bank was given a second opportunity to oppose the motion to remand. That order set several new deadlines. First, given that MortgageIt, the moving party with regard to the motion to dismiss, withdrew the motion, OneWest Bank was required to update its submissions in support of the motion, stating in particular what portions thereof still apply to it. It was given until November 29, at 5:00 p.m., to do so, but it did not do so and still has not done so. Second, the order clarified the schedule with regard to both the motion to dismiss and the motion to remand, setting both hearings for December 16. Oppositions to both motions were due on December 3, at 5:00 p.m. As stated, OneWest Bank did not file an opposition to plaintiffs' motion to remand by its original deadline. It also did not file an opposition (or statement of nonopposition) when it was given a new opportunity to do so. And it still has not done so. A defendant may remove a civil action from state court to federal court if original jurisdiction would have existed at the time the complaint was filed. 28 U.S.C. 1441(a). The strong presumption against removal jurisdiction means that a defendant bears the burden of establishing proper removal. "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance," such that courts must resolve all doubts as to removability in favor of remand. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Neither MortgageIt's notice of removal nor OneWest Bank's joinder were based on anything other than the following: "Plaintiffs [sic] claims appear to be based upon alleged violations of federal statutes . . ." This does not state a valid basis for jurisdiction of any kind -- no authority is provided for the notion that original jurisdiction exists. The parties are not diverse. Removal was not proper and jurisdiction does not exist. Therefore, the Clerk shall REMAND this action to Alameda County Superior Court. The hearings on December 16 are VACATED. IT IS SO ORDERED.

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Dated: December 6, 2010.

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
2