Bank of America National Association v. Mon Ela et al

Filing 9

Reassignment Order and Report and Recommendation Regarding Summary Remand. Signed by Magistrate Judge Donna M. Ryu on 06/07/2011. (dmrlc1, COURT STAFF) (Filed on 6/7/2011)

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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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BANK OF AMERICA NATIONAL

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ASSOCIATION,
Plaintiff,

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REASSIGNMENT ORDER AND
REPORT AND RECOMMENDATION
REGARDING SUMMARY REMAND

v.

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CASE NO. C 11-02376-DMR

MON ELA, ET AL.,
Defendants.
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This case was removed from Santa Clara County Superior Court, where it was pending as a
complaint for unlawful detainer against defendant Mon Ela, 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.

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On April 21, 2011, Defendant Ela removed this action to the United States District Court for

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the Central District of California pursuant to the procedures set forth in 28 U.S.C. § 1446. On May

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3, 2011, the action was transferred to the United States District Court for the Northern District of

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California on the grounds that the real property that is the subject of the action is located in Milpitas,

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California, which is in Santa Clara County, California, within the boundaries of the Northern

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District of California.
It appears that the grounds for removal are that the complaint presents a federal question

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such that it could have originally been filed in this Court. Federal courts are courts of limited

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jurisdiction, and a “federal court is presumed to lack jurisdiction in a particular case unless the
contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th

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For the Northern District of California

United States District Court

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Cir. 1989) (citations omitted). “[T]he presence or absence of federal-question jurisdiction is

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

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when a federal question is presented on the face of the plaintiff's properly pleaded complaint.” Rivet

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v. Regions Bank of Louisiana, 522 U.S. 470, 475 (1998) (quoting Caterpillar, Inc. v. Williams, 482

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U.S. 386, 392 (1987)). That rule applies equally to evaluating the existence of federal questions in

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cases brought initially in federal court and in removed cases. See Holmes Group, Inc. v. Vornado

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Air Circulation Systems, Inc., 535 U.S. 826, 830 n.2 (2002). Relevant for purposes here, a federal

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question only exists when it is presented by what is or should have been alleged in the complaint.

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Id. at 830. Whether a federal question may be implicated through issues raised by an answer or

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counterclaim is insufficient for purposes of establishing federal court jurisdiction. Id. at 831.
According to Ela's notice of removal, it appears that the purported federal question here

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arises because Plaintiff Bank of America National Association violated various federal

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constitutional provisions.1 The complaint filed in Santa Clara County Superior Court, however,

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simply alleges a state cause of action under unlawful detainer. Whatever Ela may intend to argue in

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response to this allegation does not give rise to removal jurisdiction. Therefore, the Court

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recommends that this action be remanded to the Santa Clara County Superior Court, that the motion

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See, e.g., Notice of Removal 5 ("[T]he Commercial Dishonor . . . is a Direct Violation of the Bill
of Right, the 7th 10th and 11th Amendment [sic] of the Constitution for united [sic] States of
America . . . .").

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to proceed in forma pauperis be denied as moot and that the Clerk be ordered to close the case file.

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The Clerk is directed to reassign this case to a District Judge.

Dated: June 7, 2011

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For the Northern District of California

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United States District Court

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DONNA M. RYU
UNITED STATES MAGISTRATE JUDGE

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