Gross Mortgage Corporation v. Al-Mansur

Filing 21

ORDER Re Defendant's Opposition to Plaintiff's Motion to Remand. Signed by Judge Edward M. Chen on 3/14/2013. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 3/14/2013)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 GROSS MORTGAGE CORPORATION, 9 11 For the Northern District of California United States District Court 10 No. C-13-0398 EMC Plaintiff, v. SABIR AL-MANSUR an individual also known as Ronald M. Poole, ORDER RE DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND (Docket Nos. 12-13) 12 13 Defendant. ___________________________________/ 14 15 Previously, the Court issued an order granting Plaintiff Gross Mortgage Corporation’s 16 motion to remand. See Docket No. 11 (order). In that order, the Court noted that Defendant Sabir 17 Al-Mansur had failed to file a timely opposition. As it turns out, Mr. Al-Mansur did in fact timely 18 file an opposition but, because of a clerk error, that opposition was not provided to the Court until 19 after the order granting the remand had already issued. 20 Because there was no fault on the part of Mr. Al-Mansur, the Court shall consider the motion 21 to remand anew -- taking into account the arguments made by Mr. Al-Mansur in his opposition.1 22 Unfortunately for Mr. Al-Mansur, none of his arguments have any merit. For example, his 23 contention that GMC does not have valid title to the real property at issue is a defense, which has no 24 25 26 27 28 1 The Court acknowledges that Mr. Al-Mansur filed a notice of appeal on March 12, 2013. A remand order, however, is not appealable where it is based on lack of subject matter jurisdiction. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12 (1996) (stating that a remand based on lack of subject matter jurisdiction is not appealable under 28 U.S.C. § 144(d)); Harmston v. City & County of San Francisco, 627 F.3d 1273, 1277 (9th Cir. 2010) (noting that, “if a district court remands a case to state court for any reason other than lack of subject matter jurisdiction, its remand order is appealable”) (emphasis in original). 1 bearing on whether there is subject matter jurisdiction based on GMC’s complaint. Similarly, his 2 claim that his constitutional rights have been violated by GMC is a defense or counterclaim, which 3 cannot be the basis for a removal.2 See Holmes Group, Inc. v. Vornado Air Circulation Systems, 4 Inc., 535 U.S. 826 (2002); ARCO Envtl. Remediation, L.L.C. v. Department of Health & Envtl. 5 Quality of St. of Mont., 213 F.3d 14 1108, 1113 (9th Cir. 2000). 6 Diversity jurisdiction is also lacking for the reason previously identified by the Court -- i.e., 7 “the matter in controversy exceed[] the sum or value of $ 75,000,” 28 U.S.C. § 1332(a), and Mr. 8 Al-Mansur has not made any showing that any damages sought by GMC would exceed that amount. 9 Indeed, the caption of the complaint (under the jurisdiction section) expressly states that GMC seeks 11 For the Northern District of California United States District Court 10 12 damages not to exceed $10,000. Finally, jurisdiction does not obtain under 28 U.S.C. § 1443. As the Court previously noted, under Supreme Court precedent, under § 1443, 13 “the vindication of the defendant’s federal rights is left to the state courts except in the rare situations where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court.” 14 15 16 Johnson v. Mississippi, 421 U.S. 213, 220 (1975) (emphasis added). Mr. Al-Mansur has not met 17 that high standard. To the extent Mr. Al-Mansur asks for an evidentiary hearing to make out a case 18 under § 1443, that request for relief is denied. Mr. Al-Mansur has not made any offer of proof to 19 establish that this case might plausibly fall under the auspices of § 1443. 20 Finally, to the extent Mr. Al-Mansur asks for a preliminary injunction or sanctions pursuant 21 to Federal Rule of Civil Procedure 11, those requests for relief are DENIED. The Court is without 22 23 24 25 26 27 28 2 The Court notes that Mr. Al-Mansur has now filed a cross-complaint in this proceeding. That pleading too has no effect on whether there is subject matter jurisdiction over this case, as subject matter jurisdiction is predicated on GMC’s complaint which initiated the lawsuit. See Nationstar, LLC v. Graves, No. 1:12-cv-02018-AWI-SKO, 2012 U.S. Dist. LEXIS 181914, at *6 (E.D. Cal. Dec. 26, 2012) (stating that “[r]emoval . . . cannot be based on a defense, counterclaim, cross-claim, or third-party claim raising a federal question, whether filed in state or federal court”); Urbino v. Orkin Servs. of Cal., 882 F. Supp. 2d 1152, --- n.12 (C.D. Cal. 2011) (noting that a “crosscomplaint is not relevant to the issue of federal question jurisdiction because jurisdiction must be analyzed on the basis of the plaintiff’s well-pleaded complaint at the time of removal, not [a defendant’s] cross-complaint”) (emphasis in original). 2 1 jurisdiction to award any injunctive relief; furthermore, Mr. Al-Mansur has not made an adequate 2 showing that GMC engaged in any conduct before this Court that implicates Rule 11. 3 4 Accordingly, for the reasons stated both in this order and its order of March 11, 2013, this case shall be remanded. 5 6 IT IS SO ORDERED. 7 8 Dated: March 14, 2013 9 _________________________ EDWARD M. CHEN United States District Judge 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 3

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