US Bank National Association v. O'Keefe

Filing 13

ORDER by Judge Edward M. Chen Granting 4 11 Plaintiff's Motion to Remand. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 11/13/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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US BANK NATIONAL ASSOCIATION,

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Plaintiff,
v.

ORDER GRANTING PLAINTIFF’S
MOTION TO REMAND

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For the Northern District of California

United States District Court

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No. C-12-5085 EMC

GINA M. O’KEEFE,

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Defendant.
___________________________________/

(Docket Nos. 4, 11)
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Plaintiff filed an ex parte motion to remand this case to state court on October 15, 2012. The

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Clerk of the Court issued a notice to Defendant informing her that any response to the motion should

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be filed within 14 days. This time has passed, and Plaintiff has failed to file a response.

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I.

FACTUAL & PROCEDURAL HISTORY

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On July 22, 2011, Plaintiff US Bank National Association brought an unlawful detainer

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action against Defendant Gina O’Keefe in the Superior Court of California, County of Sonoma.

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Docket No. 1. Plaintiff’s complaint alleged that Plaintiff had purchased the subject property in a

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foreclosure sale, and that Defendants continued to occupy the subject property after the foreclosure

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sale. Docket no. 1 at 14.

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Plaintiff’s complaint was served upon Defendant on August 8, 2012. Motion ¶ 4. On

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October 1, 2012, Defendant removed the case to federal court on the grounds that Plaintiff’s

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complaint presented federal questions. Docket No. 1 at 3 ¶ 6. On October 15, 2012, Plaintiff filed a

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motion to remand back to state court.

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II.
A.

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DISCUSSION

Failure to Remove Within 30 Days
Plaintiff argues that Defendant’s Notice of Removal was untimely filed. A defendant has

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“30 days after receipt by or service on that defendant of the initial pleading or summons . . . to file

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the notice of removal.” 28 U.S.C. § 1446(b)(2)(B) (2006). Here, Plaintiff states that the complaint

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was served upon Defendant on August 8, 2012. Motion ¶ 4. Defendant did not remove the case to

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federal court until October 1, 2012, nearly two months after being served. See Docket No. 1 at 1.

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Plaintiff contends, and this Court finds, that remand is warranted on this ground alone.

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B.

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For the Northern District of California

United States District Court

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Lack of Jurisdiction
The Court additionally finds that remand is appropriate because the Court lacks subject

matter jurisdiction over this case.
First, the Court lacks federal question jurisdiction over the case. Under the well-pleaded

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complaint rule, federal question jurisdiction must be based on the contents of the plaintiff’s

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complaint, not on defendant’s answer or counterclaims. Holmes Grp., Inc. v. Vornado Air

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Circulation Sys., Inc., 535 U.S. 826, 831 (202). Here, Defendant allegedly removed this case on the

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ground that Plaintiff’s complaint presented federal questions. Docket No. 1 at 2. However, the only

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federal question identified by Defendant is Defendants’ defenses under 12 U.S.C. § 5220. Docket

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No. 1 at 3 ¶ 8. Defendant does not identify any federal questions in Plaintiff’s complaint, and

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Plaintiff’s complaint asserts only state claims. Because Plaintiff’s complaint is limited to state

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claims, the Court lacks federal question jurisdiction over this case.

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Second, the Court lacks diversity jurisdiction over this case. Diversity jurisdiction requires

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both complete diversity in citizenship between the parties and an amount in controversy exceeding

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$75,000. 28 U.S.C. § 1332 (2006). Here, Plaintiff’s complaint merely seeks possession of the

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property in question and damages in the amount of $58.26 for each day Defendant continues in

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possession of the property. This does not satisfy the amount in controversy requirement.

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Accordingly, the Court lacks diversity jurisdiction over this case.

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Because the Court lacks subject matter jurisdiction over this case, the Court finds that
remand to state court is appropriate.

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III.

CONCLUSION

For the reasons stated above, the Court GRANTS Plaintiff’s application for remand of this

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action to state court. Accordingly, this case is ORDERED remanded to state court from which it

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was removed.

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This order disposes of Docket Nos. 4 and 11.

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IT IS SO ORDERED.

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Dated: November 13, 2012
_________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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