Federal National Mortgage Association v. Franco et al
Filing
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ORDER OF REMAND. Signed by Judge Jeffrey S. White on 4/8/13. (jjoS, COURT STAFF) (Filed on 4/8/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
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No. C 12-06431 JSW
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v.
For the Northern District of California
United States District Court
Plaintiff,
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ORDER OF REMAND
AMANDA FRANCO, et al.,
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Defendants.
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Defendants Amanda Franco and Cesar Franco (“Defendants”) removed on the basis of
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complete diversity. This Court has an independent duty to ascertain its jurisdiction and may
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remand sua sponte for lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c). “[A]ny
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civil action brought in a State court of which the district courts of the United States have
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original jurisdiction, may be removed by the defendant ... to the district court of the United
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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). An action
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originally filed in state court may be removed to federal court only if the district court could
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have exercised jurisdiction over such action if initially filed there. 28 U.S.C. § 1441(a);
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Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). The burden of establishing federal
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jurisdiction for purposes of removal is
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on the party seeking removal. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004);
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see also Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
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Moreover, a court must construe the removal statute strictly and reject jurisdiction if
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there is any doubt regarding whether removal was proper. Duncan v. Stuetzle, 76 F.3d 1480,
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1485 (9th Cir. 1996); see also Gaus, 980 F.2d at 566 (“Federal jurisdiction must be rejected if
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there is any doubt as to the right of removal in the first instance.”)
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“The presence or absence of federal-question jurisdiction is governed by the ‘well-
recognizes that the plaintiff is the master of his or her claim. “[H]e or she may avoid federal
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jurisdiction by exclusive reliance on state law.” Id. Thus, under the well-pleaded complaint
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For the Northern District of California
pleaded complaint rule.’” Caterpillar, 482 U.S. at 392. The well-pleaded complaint rule
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United States District Court
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rule, federal-question jurisdiction arises where the “complaint establishes either that federal law
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creates the cause of action or that the plaintiff’s right to relief necessarily depends on resolution
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of a substantial question of federal law.” Franchise Tax Bd., 463 U.S. at 27-28.
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Here, the state court action is an unlawful detainer action and, thus, federal law does not
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create the cause of action. Moreover, the Court concludes that the claim will not necessarily
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depend upon the resolution of a substantial question of federal law. Furthermore, a court cannot
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exercise removal jurisdiction on the ground that the complaint gives rise to a potential or an
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anticipated defense that might raise a federal question, even if the defense is the only question
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truly at issue in the case. Franchise Tax Board, 463 U.S. at 10, 14; see also Caterpillar, 482
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U.S. at 393 (“[I]t is now settled law that a case may not be removed to federal court on the basis
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of a federal defense, including the defense of pre-emption, even if the defense is anticipated in
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the plaintiff’s complaint, and even if both parties concede that the federal defense is the only
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question truly at issue.”) (emphasis in original).
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The Court also determines that it does not have diversity jurisdiction over this matter.
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First, the amount in controversy does not exceed the jurisdictional amount of $75,000. “In
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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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Plaintiff seeks daily damages from May 16, 2012 until judgment. Plaintiff filed its action as a
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“Limited Civil Case” in which the amount demanded does not exceed $25,000. (See Civil Case
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Cover Sheet, attached to Notice of Removal.) Where, as here, a plaintiff specifically alleges
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that the amount in controversy is less than the jurisdictional threshold, a defendant has the
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burden of showing with legal certainty that the amount in controversy exceeds $75,000. See
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Lowdermilk v. U.S. Bank National Ass’n, 479 F.3d 994, 1000 (9th Cir. 2007)). Defendants have
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not done so here.
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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
originally brought the action. Defendants are citizens of California. (See Notice of Removal at
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For the Northern District of California
United States District Court
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p. 2.) Therefore, pursuant to 28 U.S.C. § 1441(b), they are precluded from removing this action
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on the grounds of diversity. Therefore, the Court finds that it lacks subject matter jurisdiction to
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hear this matter.
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Additionally, the Court finds that Plaintiff, in its motion to remand, has demonstrated
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that Defendants’ notice of remand was untimely. Defendants removed this matter more than
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thirty days after they were served, filed a demurrer, and filed an answer in state court. “A
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defendant seeking to remove from state to federal court must file a notice of removal within
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thirty days of receiving a copy of the initial pleading. 28 U.S.C. § 1446(b).” Destfino v.
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Reiswig, 630 F.3d 952, 955 (9th Cir. 2011). “[T]he [§ 1446(b)] time limit is mandatory and a
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timely objection to a late petition will defeat removal.” Fristoe v. Reynolds Metals Co., 615
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F.2d 1209, 1212 (9th Cir. 1980). Defendants were served on June 4, 2012. Defendants filed a
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demurrer on July 2, 2012 and filed their answer on July 27, 2012. Therefore, their removal was
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untimely.
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Finally, the Court notes this is the second time Defendants have removed this action.
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Defendants shall not remove this action again.
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///
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The Courtt HEREBY REMANDS this action to the Superior Court of the State of
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California in and for the County of Yolo. The Clerk shall remand this case to the Superior
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Court of Yolo forthwith.
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IT IS SO ORDERED.
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Dated: April 8, 2013
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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FEDERAL NATIONAL MORTGAGE
6 ASSOCIATION,
CERTIFICATE OF SERVICE
Plaintiff,
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Case Number: CV12-06431 JSW
v.
9 AMANDA FRANCO et al,
Defendant.
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For the Northern District of California
United States District Court
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12 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
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That on April 8, 2013, I SERVED a true and correct copy(ies) of the attached, by placing
14 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
15 delivery receptacle located in the Clerk's office.
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Amanda Franco
18 Cesar Franco
1834 Hardy Drive
19 Woodland, CA 95776
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21 Dated: April 8, 2013
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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk
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