Tu et al v. Millan

Filing 48

ORDER REASSIGNING CASE TO A DISTRICT JUDGE AND RECOMMENDATION THAT THE CASE BE REMANDED TO STATE COURT. Signed by Judge Paul S. Grewal on December 13, 2011. (psglc1, COURT STAFF) (Filed on 12/13/2011) (Additional attachment(s) added on 12/14/2011: # 1 CERTIFICATE OF SERVICE) (ofr, COURT STAFF).

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION United States District Court For the Northern District of California 10 11 HONG CHANG TU AND QUOIA GIA TRINH, 12 Plaintiffs, v. 13 14 ROMULO F. MILLAN, Defendant. 15 16 17 ) ) ) ) ) ) ) ) ) ) Case No.: C 10-2962 PSG ORDER REASSIGNING CASE TO A DISTRICT JUDGE AND RECOMMENDING THAT CASE BE REMANDED TO STATE COURT (Re: Docket No. 40) Before the court is Plaintiffs Hong Chang Tu and Quoia Gia Trinh’s (collectively “Plaintiffs”) application for issuance of writ of possession of real property, or in the alternative, a 18 motion to remand for lack of jurisdiction over this unlawful detainer action. On November 30, 19 20 2011, the court granted Plaintiffs’ ex parte application for an order shortening time to hearing on 21 the application for writ of possession and the motion to remand, allowing approximately one week 22 for Defendant Romulo F. Millan (“Millan”) to file a response.1 Millan opposes the application and 23 the motion but has not filed a consent or declination to magistrate judge jurisdiction. Accordingly, 24 IT IS HEREBY ORDERED that this case be reassigned to a district judge.2 25 26 1 27 2 28 See Docket No. 43. Magistrate judges have authority to issue final dispositive rulings only in cases where all parties have consented to the jurisdiction of the magistrate judge. See 28 U.S. C. ' 636(c)(1). The Ninth Circuit has left open the question of whether a remand to state court is a “pretrial matter” that may 1 Case No.: 10-2962 PSG ORDER IT IS FURTHER RECOMMENDED that the case be remanded to state court based on lack 1 2 of subject matter or diversity jurisdiction. This action originated as a complaint for unlawful detainer. Judge Koh (then a state court 3 4 judge) presided over a trial in the case and found that Plaintiffs were entitled to recover possession 5 of the property at issue. Millan sought a stay of execution of the judgment after paying rent in the 6 amount of $6,000. Execution of the judgment was stayed until July 22, 2010. On June 17, 2010, 7 8 Millan filed a voluntary bankruptcy petition under Chapter 13 with the San Jose Division of the Northern District of California Bankruptcy Court As a result of his bankruptcy petition, this 10 United States District Court For the Northern District of California 9 unlawful detainer action became subject to an automatic stay pursuant to 11 U.S.C. § 362(a). 11 Millan then removed this case on July 6, 2010. On August 10, 2011, Millan filed a cross- 12 complaint against Cross-Defendants Alliance Bancorp, Alliance Title Company, El Dorado Hills 13 14 Real Estate Services, and Mortgage Electronic Registration Systems, Inc. alleging violations of TILA and RESPA and various state law claims.3 Millan’s efforts to challenge the foreclosure sale 15 16 to Plaintiffs proved unsuccessful in bankruptcy court and on October 12, 2011, the bankruptcy 17 judge granted relief from the stay, effective November 14, 2011. Although Millan alleges in his 18 cross-complaint both federal and state law claims, “removability cannot be created by defendant 19 pleading a counter-claim presenting a federal question.”4 Nor does the complaint for unlawful 20 21 22 23 24 25 be referred to a magistrate judge for determination pursuant to 28 U.S. C. ' 636(b)(1)(A). See Nasca v. Peoplesoft, 160 F.3d 578, 580 n. 3 (9th Cir. 1998) (“We express no opinion regarding [the magistrate judge’s] authority [to remand the case] had the matter been referred under 28 U.S.C. ' 636(b).”)). It nonetheless appears that all other appellate courts that have addressed the issue have found that remand is not merely a pretrial matter. See, e.g., In re U.S. Healthcare, 159 F.3d 142, 145-46 (3d Cir. 1998) (finding that a remand order is the “functional equivalent” of an order of dismissal for purposes of 28 U.S.C. ' 636(b)(1)(A)). Accordingly, out of an abundance of caution, the court proceeds by way of a recommendation and reassignment order. 3 26 None of these defendants have appeared in the case and it does not appear that the crosscomplaint was ever served. 27 4 28 Eden Housing Mgmt., Inc. v. Muhammad, No. C 07-4325 SBA, 2007 WL 4219397, at *2 (quoting Takeda v. Northwestern Nat. Life Ins. Co., 765 F.2d 815, 822 (9th Cir. 1985) (citations omitted)). See also Citibank N.A. v. Ortiz, No. 08-cv-1301 LAB, 2008 WL 4771932, at *1 (S.D. 2 Case No.: 10-2962 PSG ORDER 1 detainer raise a federal question. It is well-settled that federal courts do not have jurisdiction over 2 unlawful detainer actions, where federal law does not create the cause of action and the plaintiff’s 3 right to relief does not depend on a resolution of a question of federal law.5 The court further finds 4 no diversity jurisdiction based on Plaintiffs’ unlawful detainer action, which was filed in state court 5 as a case of “limited civil jurisdiction” amounting to less than $10,000 in controversy.6 6 7 8 9 United States District Court For the Northern District of California 10 In sum, based upon a review of the pleadings filed in state court, the undersigned finds that there is no basis for federal jurisdiction over this case.7 The case should therefore be remanded without further delay. Dated: 12/12/2011 11 _________________________________ PAUL S. GREWAL United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 Cal. Oct. 28, 2008) (“Neither allegations or affirmative defenses in an Answer nor in the petition for removal can create federal jurisdiction.”) (quoting Wayne v. DHL Worldwide Express, 294 F.3d 1179, 1183 (9th Cir. 2002)). 5 25 See, e.g., Eden Housing Mgmt., 2007 WL 4219397, at *2-3 (no federal question on the face of unlawful detainer complaint); Ortiz, 2008 WL 4771932, at *1 (same). 26 6 27 7 28 See Docket No. 1. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1065 (9th Cir. 1979) (“In determining the existence of removal jurisdiction based upon a federal question, we must look to the complaint as of the time the removal petition was filed.” (citations omitted). 3 Case No.: 10-2962 PSG ORDER

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