Federal National Mortgage Association v. Lopez

Filing 17

ORDER REMANDING CASE TO STATE COURT AND VACATING HEARING.. Signed by Judge Alsup on April 15, 2011. (whalc1, COURT STAFF) (Filed on 4/15/2011) (Additional attachment(s) added on 4/15/2011: # 1 Certificate of Service) (wsn, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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FEDERAL NATIONAL MORTGAGE
ASSOCIATION,

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Plaintiff,

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No. C 11-00451 WHA

ORDER REMANDING
CASE TO STATE COURT
AND VACATING HEARING

v.
CRISTINA LOPEZ,
Defendant.
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INTRODUCTION

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In this action for unlawful detainer following a foreclosure sale, defendant removed the

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action from state court and plaintiff seeks remand. This order finds that removal was improper,

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but not for any of the reasons set forth by plaintiff. Because this district court lacks removal

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jurisdiction, this order grants plaintiff’s motion to remand.

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STATEMENT

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Plaintiff Federal National Mortgage Association filed this action in July 2010, in the

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California State Superior Court in San Joaquin County. FNMA’s complaint alleges the

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following. Pursuant to a foreclosure sale, FNMA owns and is entitled to possession of real

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property located at 468 Homestead Avenue, Lathrop, CA, 95330. The former owners of the

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property, however, have refused to deliver up possession and continue to possess it as holdover

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occupants. Based on these factual allegations, the complaint claimed the following relief:

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(1) restitution of the property; (2) damages at the rate of $30.00 per day from July 30, 2010, until

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the date that judgment is entered; and (3) costs of the action. Pro se defendant Christina Lopez

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was not named in the original complaint, which instead named two other defendants and ten Does

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(Dkt. No. 1-1).

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On January 28, 2011, Lopez removed the action to federal court pursuant to

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28 U.S.C. 1331. Lopez stated that the removal was based upon federal-question jurisdiction.

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Specifically, Lopez “strongly believes she has been discriminated [sic] and that [FNMA] has

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violated federal law” in that FNMA “failed to provide the defendant with a 90 day notice to quit,

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by federal law passed in 2009 of May [sic], call [sic] S.896 SEC.702 EFFECT OF
FORECLOSURE ON PREEXISTING TENANCY [sic]” (Dkt. No. 1 at 2).

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For the Northern District of California

United States District Court

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A month later, FMNA filed the instant motion to remand. A hearing on the motion was

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noticed for April 28, 2011, meaning that Lopez’s opposition or statement of non-opposition to the

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motion was due on April 7. No such filing was made. Nonetheless, this order finds that this court

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is without removal jurisdiction and that the only proper course of action is remand.

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ANALYSIS

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A defendant may remove a civil action from state court to federal court if original

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jurisdiction would have existed in the federal court at the time the complaint was filed.

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28 U.S.C. 1441(a). There is a strong presumption against removal jurisdiction, and the defendant

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always has the burden of establishing that removal is proper. Hunter v. Philip Morris USA,

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582 F.3d 1039, 1042 (9th Cir. 2009). Here, defendant Lopez’s notice of removal does not

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establish that removal is proper.
Lopez based her removal on federal-question jurisdiction.1 United States district courts

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have original federal-question jurisdiction “of all civil actions arising under the Constitution,

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laws, or treaties of the United States.” 28 U.S.C. 1331. An action “arises under” federal law only

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if the federal question appears on the face of the complaint. Removability “cannot be created by

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defendant pleading a counter-claim presenting a federal question.” Takeda v. Northwestern Nat’l

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Bizarrely, FNMA’s memorandum of points and authorities in support of its motion to remand
acknowledges that the removal was based on federal-question jurisdiction but does not address federal-question
jurisdiction at all. Instead, all three of the arguments in FNMA’s brief focus on diversity jurisdiction.

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Life Ins. Co., 765 F.2d 815, 821–22 (9th Cir. 1985). Here, the complaint does not plead any

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claims arising under federal law. Accordingly, there was no original federal-question jurisdiction.

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Lopez points to her own “strong belief” that plaintiffs violated federal law as the supposed source

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of federal-question jurisdiction, but such a counterclaim cannot establish jurisdiction for purposes

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of removal. The removal based on federal-question jurisdiction was improper.

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A removal based on diversity jurisdiction also would have been improper. United States

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district courts have original diversity jurisdiction “of all civil actions where the matter in

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controversy exceeds the sum or value of $75,000” and is between parties of diverse citizenship.

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28 U.S.C. 1332. Here, FNMA seeks monetary damages of only thirty dollars per day since
July 30, 2010. At present, that sum has run to only approximately $7,700, which is an order of

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For the Northern District of California

United States District Court

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magnitude less than the statutory minimum. Furthermore, both plaintiff and defendant identify

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themselves as citizens of California (Dkt. No. 1 at 2; Dkt. No. 1-1 at 4). There is no

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diversity jurisdiction.

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This order concludes that removal jurisdiction does not exist. Accordingly, plaintiff’s
motion to remand must be granted.

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CONCLUSION
Plaintiff’s motion to remand is GRANTED. The action is REMANDED to the California

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State Superior Court in San Joaquin County. The Clerk shall forward the file. The hearing set for

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April 28, 2011, is VACATED.

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IT IS SO ORDERED.

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Dated: April 15, 2011.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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