BAC Home Loans Servicing LP v. Tumber et al

Filing 11

ORDER FOR CLERK OF COURT TO REASSIGN CASE, REPORT AND RECOMMENDATIONS RE REMAND. Signed by Judge Maria-Elena James on 6/16/2011. (cdnS, COURT STAFF) (Filed on 6/16/2011)

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UNITED STATES DISTRICT COURT

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Northern District of California

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BAC HOME LOANS SERVICING LP,
Plaintiff,

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ORDER FOR CLERK OF COURT TO
REASSIGN CASE

v.
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For the Northern District of California

UNITED STATES DISTRICT COURT

No. C 10-05674 MEJ

DALJIT TUMBER and SONIKA TUMBER

REPORT & RECOMMENDATION

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Defendants.
_____________________________________/

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I. INTRODUCTION

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On December 14, 2010, Defendants Daljit Tumber and Sonika Tumber (“Defendants”)

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removed this unlawful detainer action from the Alameda County Superior Court, alleging both

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federal question and diversity jurisdiction. Not. of Removal at 1, Dkt. No. 1. Since that time,

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Defendants have made no further appearance, and there is no indication that Plaintiff BAC Home

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Loans Servicing LP has been properly served. However, for the reasons set forth below, the Court

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finds that jurisdiction is lacking and the case should be remanded to state court. As neither party has

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consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c), the undersigned ORDERS

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that this case be reassigned to a district court judge with the recommendation that the Court

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REMAND the case to the Alameda County Superior Court.

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II. BACKGROUND

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Plaintiff alleges that it is the owner of the real property located at 3141 Atwal Court in

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Hayward, California, which it obtained as the result of a Trustee’s Sale. Compl. ¶¶ 1, 6, 8, Dkt. No.

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1. After obtaining title, Plaintiff alleges that it served Defendants a notice to quit on May 5, 2010,

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but Defendants failed to deliver up possession of the property. Id. at ¶¶ 8, 10. On June 11, 2010,

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Plaintiff filed this unlawful detainer action pursuant to California Civil Procedure Code section

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1161(a), which permits a purchaser under a Trustee Sale to bring an unlawful detainer action against

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the trustor, or anyone holding under the trustor, who refuses to relinquish possession.

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On December 14, 2010, Defendants removed the case to this Court. However, as Defendants

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failed to make any subsequent appearance, and there was no indication that Plaintiff had been served

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with the Notice of Removal, the Court issued an order to show cause on May 13, 2011, ordering

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Defendants to show cause why this case should not be remanded to the Alameda County Superior

scheduled a hearing on June 16, 2011. Defendants failed to file a declaration in response and failed

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Court. Dkt. No. 8. The Court ordered Defendants to file a declaration by June 2, 2011, and

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UNITED STATES DISTRICT COURT

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to appear at the June 16 hearing.

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III. LEGAL STANDARD
“Except as otherwise expressly provided by Act of Congress, any civil action brought in a

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State court of which the district courts of the United States have original jurisdiction, may be

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removed by the defendant or the defendants, to the district court of the United States for the district

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and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). “If at any

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time before final judgment, it appears that the district court lacks subject matter jurisdiction, the case

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shall be remanded.” 28 U.S.C. § 1447(c).

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The Ninth Circuit “strictly construe[s] the removal statute against removal jurisdiction.”

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Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citations omitted). Thus, “[f]ederal

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jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.” Id.

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(citation omitted). “The ‘strong presumption’ against removal jurisdiction means that the defendant

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always has the burden of establishing that removal is proper.” Id.; see also Abrego v. Dow Chemical

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Co., 443 F.3d 676, 685 (9th Cir. 2006). Removal jurisdiction may be based on the existence of a

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federal question or diversity of citizenship.

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IV. DISCUSSION

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A.

Federal Question Jurisdiction

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Defendants based removal on both federal question and diversity jurisdiction. As to federal

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question jurisdiction, Defendants allege that jurisdiction exists from Plaintiff’s “discovery requests

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and demand for: ‘THE ORIGINAL BLUE INKED PROMISSORY NOTE,’ and as to identify the

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statutory basis for the discovery request/demand and other claims.” Not. of Removal at 2, Dkt. No.

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1. Defendants cite to no statutory or other legal authority to support this allegation.

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Where a civil action over which the federal courts have original jurisdiction is brought in
state court, the defendant may remove the action to federal district court. See 28 U.S.C. § 1441. A

face of the properly pleaded complaint. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).

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case may be removed pursuant to 28 U.S.C. § 1441 only where a federal question appears on the

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UNITED STATES DISTRICT COURT

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Thus, a plaintiff may “by eschewing claims based on federal law, choose to have the cause be heard

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in state court.” Id. at 399. And an anticipated federal defense is not sufficient to confer jurisdiction.

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Franchise Tax Bd. of California v. Construction Laborers Vacation Trust, 463 U.S. 1, 10 (1983).

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But a plaintiff may not defeat removal by omitting necessary federal questions from his or her

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complaint. Id. at 22.

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Here, the face of the complaint, which asserts only one state law claim for unlawful detainer,

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does not provide any ground for removal. An unlawful detainer action, on its face, does not arise

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under federal law but is purely a creature of California law. Wells Fargo Bank v. Lapeen, 2011 WL

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2194117, at *3 (N.D. Cal. June 6, 2011); Wescom Credit Union v. Dudley, 2010 WL 4916578, at *2

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(C.D. Cal. Nov. 22, 2010). As noted above, Defendants’ Notice of Removal suggests that this

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Court’s subject matter jurisdiction over Plaintiff’s single unlawful detainer claim somehow results

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from Plaintiff’s “discovery requests and demand for: ‘THE ORIGINAL BLUE INKED

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PROMISSORY NOTE’.” Not. of Removal at 2. However, it is unclear how a violation of federal

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law could result from Plaintiff’s discovery requests as such requests are not part of the pleading that

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initiated this action, and Defendants have not explained how removal might be premised upon such

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requests. See, e.g., Aurora Loan Services, LLC v. Thanh Van Le, 2011 WL 2079707, at *3 (E.D.

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Cal. May 23, 2011). No explanation readily appears to the undersigned. Accordingly, Defendants

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have not met their burden of demonstrating grounds for jurisdiction over Plaintiff’s single claim for

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unlawful detainer brought pursuant to California law.

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B.

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Diversity Jurisdiction
Defendants also base removal on diversity jurisdiction, alleging that complete diversity

Pursuant to 28 U.S.C. § 1332, this Court has diversity jurisdiction where the parties are diverse and

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“the matter in controversy exceeds the sum or value of $75,000, exclusive of interests and costs.”

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Here, the allegations in the unlawful detainer action do not explicitly state that the parties are

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residents of different states and do not explicitly state an amount in controversy that exceeds

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$75,000. While the Notice of Removal describes Defendants as citizens of California, it is silent

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exists among the parties and the amount in controversy exceeds $95,000. Not. of Removal at 2.

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UNITED STATES DISTRICT COURT

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with respect to Plaintiff’s citizenship. Not. of Removal at 2. Further, within its complaint, Plaintiff

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described itself as a corporation authorized to do business in California, but it did not purport to

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describe its citizenship for diversity purposes. Compl. ¶ 1. Without an opposition from Defendants

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showing diversity of citizenship and an amount in controversy in excess of $75,000, the Court finds

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that jurisdiction cannot be based in diversity of citizenship. Deutsche Bank Nat. Trust Co. v. Gomez,

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2011 WL 2135219, at *3 (N.D. Cal. May 27, 2011). Accordingly, the lack of such jurisdiction

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provides grounds to remand.

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V. CONCLUSION

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Because the Court lacks jurisdiction over this case, the undersigned RECOMMENDS that

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the District Court remand this case to the Alameda County Superior Court. Any party may serve

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and file specific written objections to this recommendation within fourteen (14) days after being

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served with a copy. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b); Civil Local Rule 72–3.

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IT IS SO ORDERED.

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Dated: June 16, 2011
_______________________________
Maria-Elena James
Chief United States Magistrate Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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BAC HOME LOANS SERVICING, LP,
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Case Number: CV10-05674 MEJ
Plaintiff,

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CERTIFICATE OF SERVICE
v.

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DALJIT S. TUMBER et al,
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Defendant.
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For the Northern District of California

UNITED STATES DISTRICT COURT

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/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on June 16, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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Daljit S. Tumber
Sonika K. Tumber
3141 Atwal Court
Hayward, CA 94541
Dated: June 16, 2011
Richard W. Wieking, Clerk
By: Brenda Tolbert, Deputy Clerk

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