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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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HONG CHANG TU AND QUOIA GIA
TRINH,

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Plaintiffs,
v.

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ROMULO F. MILLAN,
Defendant.

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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

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motion to remand for lack of jurisdiction over this unlawful detainer action. On November 30,
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2011, the court granted Plaintiffs’ ex parte application for an order shortening time to hearing on

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the application for writ of possession and the motion to remand, allowing approximately one week

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for Defendant Romulo F. Millan (“Millan”) to file a response.1 Millan opposes the application and

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the motion but has not filed a consent or declination to magistrate judge jurisdiction. Accordingly,

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IT IS HEREBY ORDERED that this case be reassigned to a district judge.2

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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
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Case No.: 10-2962 PSG
ORDER

IT IS FURTHER RECOMMENDED that the case be remanded to state court based on lack

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of subject matter or diversity jurisdiction.
This action originated as a complaint for unlawful detainer. Judge Koh (then a state court

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judge) presided over a trial in the case and found that Plaintiffs were entitled to recover possession

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of the property at issue. Millan sought a stay of execution of the judgment after paying rent in the

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amount of $6,000. Execution of the judgment was stayed until July 22, 2010. On June 17, 2010,

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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

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United States District Court
For the Northern District of California

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unlawful detainer action became subject to an automatic stay pursuant to 11 U.S.C. § 362(a).

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Millan then removed this case on July 6, 2010. On August 10, 2011, Millan filed a cross-

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complaint against Cross-Defendants Alliance Bancorp, Alliance Title Company, El Dorado Hills

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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

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to Plaintiffs proved unsuccessful in bankruptcy court and on October 12, 2011, the bankruptcy

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judge granted relief from the stay, effective November 14, 2011. Although Millan alleges in his

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cross-complaint both federal and state law claims, “removability cannot be created by defendant

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pleading a counter-claim presenting a federal question.”4 Nor does the complaint for unlawful

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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.
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None of these defendants have appeared in the case and it does not appear that the crosscomplaint was ever served.

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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.
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Case No.: 10-2962 PSG
ORDER

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detainer raise a federal question. It is well-settled that federal courts do not have jurisdiction over

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unlawful detainer actions, where federal law does not create the cause of action and the plaintiff’s

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right to relief does not depend on a resolution of a question of federal law.5 The court further finds

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no diversity jurisdiction based on Plaintiffs’ unlawful detainer action, which was filed in state court

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as a case of “limited civil jurisdiction” amounting to less than $10,000 in controversy.6

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United States District Court
For the Northern District of California

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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

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_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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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)).
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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).

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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).
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Case No.: 10-2962 PSG
ORDER