Wells Fargo Bank, N.A. v. Thomas

Filing 15

ORDER GRANTING : 5 MOTION to Remand. Signed by Judge Jeffrey S. White on 7/3/12. (jjoS, COURT STAFF) (Filed on 7/3/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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WELLS FARGO BANK, N.A.,
Plaintiff,

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For the Northern District of California

United States District Court

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No. C 12-01569 JSW

v.
DAVID A. THOMAS, et al.,

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ORDER GRANTING MOTION
FOR REMAND

Defendants.
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Now before the Court is the motion for remand filed by plaintiff Wells Fargo Bank, N.A

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(“Wells Fargo”). The Court has considered the parties’ papers, relevant legal authority, and it

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finds this matter suitable for disposition without oral argument. See N.D. Civ. L.R. 7-1(b).

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Accordingly, the hearing set for July 6, 2012 is VACATED. The Court grants Wells Fargo’s

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motion for remand.1
ANALYSIS

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A.

Applicable Legal Standard.
“[A]ny civil action brought in a State court of which the district courts of the United

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States have original jurisdiction, may be removed by the defendant ... to the district court of the

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United States for the district and division embracing the place where such action is pending.”

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Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 7-8 (1983) (citation

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omitted); see also 28 U.S.C. § 1441. However, federal courts are courts of limited jurisdiction.

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See, e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Accordingly,

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The Court GRANTS Wells Fargo’s Request for Judicial Notice (“RJN”). See Fed.
R. Evid. 201.
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the burden of establishing federal jurisdiction for purposes of removal is on the party seeking

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removal, and the removal statute is strictly construed against removal jurisdiction. California

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ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838, amended by 387 F.3d 966 (9th Cir. 2004);

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Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). “Federal jurisdiction must be

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rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles,

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Inc., 980 F.2d 564, 566 (9th Cir. 1992).

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Thomas removed this matter more than thirty days after he was served and filed an

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Removal Was Untimely.

answer in state court. “A defendant seeking to remove from state to federal court must file a
notice of removal within thirty days of receiving a copy of the initial pleading. 28 U.S.C. §

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For the Northern District of California

United States District Court

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1446(b).” Destfino v. Reiswig, 630 F.3d 952, 955 (9th Cir. 2011). “[T]he [§ 1446(b)] time limit

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is mandatory and a timely objection to a late petition will defeat removal.” Fristoe v. Reynolds

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Metals Co., 615 F.2d 1209, 1212 (9th Cir. 1980). Thomas filed an answer on February 16, 2012

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and removed this action on March 29, 2012 more than thirty days later. Therefore, his removal

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was untimely and this matter shall be remanded.

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2.

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This action shall also be remanded based on lack of subject matter jurisdiction. To the

Lack of Subject Matter Jurisdiction.

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extent Thomas contends that federal question provides a basis for removal, he is mistaken.

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“The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded

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complaint rule.’” Caterpillar Inc. v. Williams, 482 U.S. 382, 392 (1987). The well-pleaded

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complaint rule recognizes that the plaintiff is the master of his or her claim. “[H]e or she may

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avoid federal jurisdiction by exclusive reliance on state law.” Id. Thus, under the well-pleaded

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complaint rule, federal-question jurisdiction arises where the “complaint establishes either that

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federal law creates the cause of action or that the plaintiff’s right to relief necessarily depends

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on resolution of a substantial question of federal law.” Franchise Tax Bd., 463 U.S. at 27-28.

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“It is well settled law that a case may not be removed to federal court on the basis of a federal

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defense, including the defense of preemption, even if the defense is anticipated in the plaintiff’s

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complaint, and even if both parties concede that the federal defense is the only true question at
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issue.” Caterpillar, 482 U.S. at 393 (emphasis in original). Here, the complaint alleges a single

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claim for unlawful detainer. Because unlawful detainer claims do not arise under federal law,

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there is no federal question jurisdiction.

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The Court also determines that it does not have diversity jurisdiction over this matter.

unlawful detainer actions, the right to possession is contested, not title to the property, and

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plaintiffs may collect only damages that are incident to that unlawful possession.” Federal

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Home Loan Mortgage Corp. v. Pulido, 2012 WL 540554 (N.D. Cal. Feb. 17, 2012). Here,

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Wells Fargo seeks daily damages of $33.33 from November 27, 2011 until judgment. To date,

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Wells Fargo’s damages amount to approximately $7,000, which is well under the jurisdiction

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For the Northern District of California

First, the amount in controversy does not exceed the jurisdictional amount of $75,000. “In

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United States District Court

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minimum.

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Diversity jurisdiction is lacking for another independent reason. 28 U.S.C. § 1441(b)

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prohibits removal where a defendant in the case is a citizen of the state in which the plaintiff

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originally brought the action. Thomas is a citizen of California. Therefore, pursuant to 28

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U.S.C. § 1441(b), he is precluded from removing this action on the grounds of diversity.

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Thomas contends that removal is proper under 28 U.S.C. § 1443(1), as a civil rights

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action. “To remove a civil rights case under section 1443, it must appear that the right allegedly

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denied arises under a federal law providing for specific civil rights stated in terms of racial

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equality, and that the removal petitioner is denied or cannot enforce the specific federal right in

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state court.” Hewitt v. City of Stanton, 798 F.2d 1230, 1233 (9th Cir. 1986) (citing Georgia v.

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Rachel, 384 U.S. 780, 792 (1966) and City of Greenwood v. Peacock, 384 U.S. 808, 831

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(1966)). Thomas has not established either of these elements. Accordingly, removal was not

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proper under 28 U.S.C. § 1443(1) and the Court hereby grants Wells Fargo’s motion to remand.

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CONCLUSION
For the foregoing reasons, the Court GRANTS the motion to remand. The Clerk shall
remand this case to the Superior Court of Alameda County forthwith.
IT IS SO ORDERED.

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Dated: July 3, 2012
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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WELLS FARGO BANK, N.A. et al,

Case Number: CV12-01569 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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THOMAS 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 July 3, 2012, 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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David A. Thomas
19500 Mount Jasper Drive
Castro Valley, CA 94552

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Dated: July 3, 2012
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk