GMAC Mortgage, LLC v. Lopez

Filing 8

REPORT AND RECOMMENDATIONS re 1 Notice of Removal filed by Miguel Lopez, 3 Motion for Leave to Proceed in Forma Pauperis filed by Miguel Lopez, ORDER REASSIGNING CASE. Objections due by 6/16/2011. Signed by Magistrate Judge Donna M. Ryu on 6/2/2011. (dmrlc2, COURT STAFF) (Filed on 6/2/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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For the Northern District of California

United States District Court

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GMAC MORTGAGE, LLC,
Plaintiff,

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v.

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CASE NO. C 11-02347-DMR

MIGUEL LOPEZ,

REASSIGNMENT ORDER AND
REPORT AND RECOMMENDATION
REGARDING SUMMARY REMAND

Defendant.
____________________________________/
This case was removed from Solano County Superior Court, where it was pending as a
complaint for unlawful detainer against defendant Miguel Lopez, who appears here in pro se and
has filed a motion to appear in forma pauperis. Under 28 U.S.C. § 1446(c)(4), when a notice of
removal is filed, the court is directed to examine it “promptly,” and, “[i]f it clearly appears on the
face of the notice and any exhibits annexed thereto that removal should not be permitted, the court
shall make an order for summary remand.” Plaintiff has not yet filed a declination or consent to the
jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). Therefore, the Court issues herein
a Report and Recommendation and reassigns this case to a District Judge for final disposition, with
the recommendation that summary remand be ordered.
Lopez removed this action pursuant to 28 U.S.C. § 1441(a), on the grounds that the
complaint presents a federal question such that it could have originally been filed in this Court.

in a particular case unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated

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Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989) (citations omitted). “[T]he presence or absence of

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federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that

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federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's

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properly pleaded complaint.” Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475 (1998)

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(quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)). That rule applies equally to

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evaluating the existence of federal questions in cases brought initially in federal court and in

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removed cases. See Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826,

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830 n.2 (2002). Relevant for purposes here, a federal question only exists when it is presented by

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what is or should have been alleged in the complaint. Id. at 830. Whether a federal question may be

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implicated through issues raised by an answer or counterclaim is insufficient for purposes of

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establishing federal court jurisdiction. Id. at 831.

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According to Lopez’s notice of removal, the purported federal question here arises because
Plaintiff GMAC Mortgage, Corp. violated certain federal notice provisions. Specifically, he argues

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that GMAC Mortgage, Corp. failed to provide 90 days notice to quit, as required by the Helping

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Families Save Their Homes Act of 2009. See Pub. L. No. 111-22, 123 Stat. 1660. The complaint

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filed in Solano County Superior Court, however, simply alleges a state cause of action under

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unlawful detainer. Whatever Lopez may intend to argue in response to this allegation does not give

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rise to removal jurisdiction. Therefore, the Court recommends that this action be remanded to the

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Solano County Superior Court, that the motion to proceed in forma pauperis be denied as moot and

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that the Clerk be ordered to close the case file. The Clerk is directed to reassign this case to a

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District Judge.

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. Ryu

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Judge D

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Dated: June 2, 2011

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UNIT
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For the Northern District of California

Federal courts are courts of limited jurisdiction, and a “federal court is presumed to lack jurisdiction

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United States District Court

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D IS T IC T O
DONNA M. RYU
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UNITED STATES MAGISTRATE JUDGE

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