GMAC Mortgage LLC v. Rosario

Filing 10

ORDER granting 3 Ex Parte MOTION to Remand. Signed by Judge Hamilton on 5/6/2011. (pjhlc1, COURT STAFF) (Filed on 5/9/2011) (Additional attachment(s) added on 5/9/2011: # 1 Certificate of Service) (nah, COURT STAFF).

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 GMAC MORTGAGE, LLC, Plaintiff, 8 9 v. ORDER GRANTING MOTION TO REMAND FRANKLIN ROSARIO, 11 For the Northern District of California United States District Court 10 No. C 11-1894 PJH Defendant. _______________________________/ 12 13 Before the court is the motion of plaintiff GMAC Mortgage LLC (“GMAC”) for an 14 order remanding the above-entitled action to the Superior Court of California, County of 15 San Mateo. 16 A defendant may remove a civil action filed in state court if the action could have 17 originally been filed in federal court. 28 U.S.C. § 1441. A plaintiff may seek to have a case 18 remanded to the state court from which it was removed if the district court lacks jurisdiction 19 or if there is a defect in the removal procedure. 28 U.S.C. § 1447(c). The removal statutes 20 are construed restrictively, so as to limit removal jurisdiction. Shamrock Oil & Gas Corp. v. 21 Sheets, 313 U.S. 100, 108-09 (1941); see also Matheson v. Progressive Specialty Ins. Co., 22 319 F.3d 1089, 1090 (9th Cir. 2003) (doubts as to removability are resolved in favor of 23 remanding case to state court). 24 Subject matter jurisdiction is fundamental and cannot be waived. Billingsly v. C.I.R., 25 868 F.2d 1081, 1085 (9th Cir. 1989). Federal courts can adjudicate only those cases which 26 the Constitution and Congress authorize them to adjudicate – those involving diversity of 27 citizenship or a federal question, or those to which the United States is a party. 28 See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). The burden 1 of establishing federal jurisdiction for purposes of removal is on the party seeking removal. 2 Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). The district court must 3 remand the case if it appears before final judgment that the court lacks subject matter 4 jurisdiction. 28 U.S.C. § 1447(c). 5 The complaint at issue, which was filed in San Mateo County Superior Court on 6 September 30, 2009, alleges a single cause of action under state law, for unlawful detainer 7 following a non-judicial foreclosure sale in May 2009. The complaint further alleges that on 8 June 30, 2009, after GMAC’s title was perfected, it served a “Notice to Quit” on defendant, 9 requiring him to quit and deliver up possession of the premises to GMAC. However, 11 For the Northern District of California United States District Court 10 defendant remained in possession of the premises without GMAC’s permission. The caption of the complaint states, “Demand is less than $10,000.00.” In the 12 prayer for relief, Provident seeks “[r]estitution and possession of the Premises,” and 13 “damages at the rate of $90.00 or more per day upon proof at trial from September 29, 14 2009 until date of judgment.” On April 19, 2011, the San Mateo Superior Court entered 15 judgment in favor of GMAC. The judgment notes that defendant “failed to appear.” 16 Also on April 19, 2011, defendant filed a notice of removal, asserting federal 17 question jurisdiction. Defendant alleges that federal question jurisdiction exists because his 18 “demurrer, a pleading, depend[s] on the determination of [d]efendants’ rights and [p]laintiff’s 19 duties under federal law.” 20 In the present motion, GMAC argues that removal was untimely, and that defendant 21 has not met his burden of establishing that this court has federal question jurisdiction. 22 GMAC also asserts that the notice of removal was filed for an improper purpose (to avoid a 23 lawful eviction) and that defendant cannot effect a removal of the case because the 24 judgment was already entered by the state court. 25 Under 28 U.S.C. § 1447(c), the district court is required to remand state law claims 26 where the court lacks removal jurisdiction – that is, where there is no federal question or 27 diversity jurisdiction. Albingia Versicherungs A.G. v. Schenker Int’l, Inc., 344 F.3d 931, 936 28 (9th Cir. 2003). Subject matter jurisdiction is fundamental and cannot be waived. Billingsly 2 1 v. C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989). Federal courts have no power to consider 2 claims for which they lack subject-matter jurisdiction. See Chen-Cheng Wang ex rel. 3 United States v. FMC Corp., 975 F.2d 1412, 1415 (9th Cir. 1992). 4 In ruling on a motion to remand for lack of subject matter jurisdiction, the court looks 5 only to the face of the complaint. See Toumajian v. Frailey, 135 F.3d 648, 653 n.2 (9th Cir. 6 1998); see also Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 692-93 (9th Cir. 2005). 7 Here, the court finds no federal question pled in the unlawful detainer action. Nor does the 8 amount in controversy in the unlawful detainer action exceed $75,000. Accordingly, as the 9 court lacks subject matter jurisdiction, it is ORDERED that this case be remanded to the San Mateo County Superior Court. 11 For the Northern District of California United States District Court 10 12 IT IS SO ORDERED. 13 Dated: May 6, 2011 ______________________________ PHYLLIS J. HAMILTON United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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