Federal National Mortgage Association v. Franco et al

Filing 18

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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 FEDERAL NATIONAL MORTGAGE ASSOCIATION, 10 No. C 12-06431 JSW 11 v. For the Northern District of California United States District Court Plaintiff, 12 ORDER OF REMAND AMANDA FRANCO, et al., 13 Defendants. 14 / 15 16 Defendants Amanda Franco and Cesar Franco (“Defendants”) removed on the basis of 17 complete diversity. This Court has an independent duty to ascertain its jurisdiction and may 18 remand sua sponte for lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c). “[A]ny 19 civil action brought in a State court of which the district courts of the United States have 20 original jurisdiction, may be removed by the defendant ... to the district court of the United 21 States for the district and division embracing the place where such action is pending.” 22 Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 7-8 (1983) (citation 23 omitted); see also 28 U.S.C. § 1441. However, federal courts are courts of limited jurisdiction. 24 See, e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). An action 25 originally filed in state court may be removed to federal court only if the district court could 26 have exercised jurisdiction over such action if initially filed there. 28 U.S.C. § 1441(a); 27 Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). The burden of establishing federal 28 jurisdiction for purposes of removal is 1 on the party seeking removal. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004); 2 see also Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 3 Moreover, a court must construe the removal statute strictly and reject jurisdiction if 4 there is any doubt regarding whether removal was proper. Duncan v. Stuetzle, 76 F.3d 1480, 5 1485 (9th Cir. 1996); see also Gaus, 980 F.2d at 566 (“Federal jurisdiction must be rejected if 6 there is any doubt as to the right of removal in the first instance.”) 7 “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 10 jurisdiction by exclusive reliance on state law.” Id. Thus, under the well-pleaded complaint 11 For the Northern District of California pleaded complaint rule.’” Caterpillar, 482 U.S. at 392. The well-pleaded complaint rule 9 United States District Court 8 rule, federal-question jurisdiction arises where the “complaint establishes either that federal law 12 creates the cause of action or that the plaintiff’s right to relief necessarily depends on resolution 13 of a substantial question of federal law.” Franchise Tax Bd., 463 U.S. at 27-28. 14 Here, the state court action is an unlawful detainer action and, thus, federal law does not 15 create the cause of action. Moreover, the Court concludes that the claim will not necessarily 16 depend upon the resolution of a substantial question of federal law. Furthermore, a court cannot 17 exercise removal jurisdiction on the ground that the complaint gives rise to a potential or an 18 anticipated defense that might raise a federal question, even if the defense is the only question 19 truly at issue in the case. Franchise Tax Board, 463 U.S. at 10, 14; see also Caterpillar, 482 20 U.S. at 393 (“[I]t is now settled law that a case may not be removed to federal court on the basis 21 of a federal defense, including the defense of pre-emption, even if the defense is anticipated in 22 the plaintiff’s complaint, and even if both parties concede that the federal defense is the only 23 question truly at issue.”) (emphasis in original). 24 The Court also determines that it does not have diversity jurisdiction over this matter. 25 First, the amount in controversy does not exceed the jurisdictional amount of $75,000. “In 26 unlawful detainer actions, the right to possession is contested, not title to the property, and 27 plaintiffs may collect only damages that are incident to that unlawful possession.” Federal 28 Home Loan Mortgage Corp. v. Pulido, 2012 WL 540554 (N.D. Cal. Feb. 17, 2012). Here, 2 1 Plaintiff seeks daily damages from May 16, 2012 until judgment. Plaintiff filed its action as a 2 “Limited Civil Case” in which the amount demanded does not exceed $25,000. (See Civil Case 3 Cover Sheet, attached to Notice of Removal.) Where, as here, a plaintiff specifically alleges 4 that the amount in controversy is less than the jurisdictional threshold, a defendant has the 5 burden of showing with legal certainty that the amount in controversy exceeds $75,000. See 6 Lowdermilk v. U.S. Bank National Ass’n, 479 F.3d 994, 1000 (9th Cir. 2007)). Defendants have 7 not done so here. 8 Diversity jurisdiction is lacking for another independent reason. 28 U.S.C. § 1441(b) 9 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 11 For the Northern District of California United States District Court 10 p. 2.) Therefore, pursuant to 28 U.S.C. § 1441(b), they are precluded from removing this action 12 on the grounds of diversity. Therefore, the Court finds that it lacks subject matter jurisdiction to 13 hear this matter. 14 Additionally, the Court finds that Plaintiff, in its motion to remand, has demonstrated 15 that Defendants’ notice of remand was untimely. Defendants removed this matter more than 16 thirty days after they were served, filed a demurrer, and filed an answer in state court. “A 17 defendant seeking to remove from state to federal court must file a notice of removal within 18 thirty days of receiving a copy of the initial pleading. 28 U.S.C. § 1446(b).” Destfino v. 19 Reiswig, 630 F.3d 952, 955 (9th Cir. 2011). “[T]he [§ 1446(b)] time limit is mandatory and a 20 timely objection to a late petition will defeat removal.” Fristoe v. Reynolds Metals Co., 615 21 F.2d 1209, 1212 (9th Cir. 1980). Defendants were served on June 4, 2012. Defendants filed a 22 demurrer on July 2, 2012 and filed their answer on July 27, 2012. Therefore, their removal was 23 untimely. 24 Finally, the Court notes this is the second time Defendants have removed this action. 25 Defendants shall not remove this action again. 26 /// 27 /// 28 /// 3 1 The Courtt HEREBY REMANDS this action to the Superior Court of the State of 2 California in and for the County of Yolo. The Clerk shall remand this case to the Superior 3 Court of Yolo forthwith. 4 IT IS SO ORDERED. 5 6 Dated: April 8, 2013 JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 FEDERAL NATIONAL MORTGAGE 6 ASSOCIATION, CERTIFICATE OF SERVICE Plaintiff, 7 8 Case Number: CV12-06431 JSW v. 9 AMANDA FRANCO et al, Defendant. / 11 For the Northern District of California United States District Court 10 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. 13 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. 16 17 Amanda Franco 18 Cesar Franco 1834 Hardy Drive 19 Woodland, CA 95776 20 21 Dated: April 8, 2013 22 23 24 25 26 27 28 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk

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