GMAC Mortgage LLC v. Rosario

Filing 9

ORDER by Judge Hamilton granting 3 Motion to Remand (pjhlc1, COURT STAFF) (Filed on 5/6/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GMAC MORTGAGE, LLC,
Plaintiff,

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v.

ORDER GRANTING MOTION
TO REMAND

FRANKLIN ROSARIO,

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For the Northern District of California

United States District Court

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No. C 11-1894 PJH

Defendant.
_______________________________/

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Before the court is the motion of plaintiff GMAC Mortgage LLC (“GMAC”) for an

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order remanding the above-entitled action to the Superior Court of California, County of

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San Mateo. The court finds that the motion must be GRANTED.

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A defendant may remove a civil action filed in state court if the action could have

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originally been filed in federal court. 28 U.S.C. § 1441. A plaintiff may seek to have a case

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remanded to the state court from which it was removed if the district court lacks jurisdiction

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or if there is a defect in the removal procedure. 28 U.S.C. § 1447(c). The removal statutes

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are construed restrictively, so as to limit removal jurisdiction. Shamrock Oil & Gas Corp. v.

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Sheets, 313 U.S. 100, 108-09 (1941); see also Matheson v. Progressive Specialty Ins. Co.,

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319 F.3d 1089, 1090 (9th Cir. 2003) (doubts as to removability are resolved in favor of

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remanding case to state court).

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Subject matter jurisdiction is fundamental and cannot be waived. Billingsly v. C.I.R.,

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868 F.2d 1081, 1085 (9th Cir. 1989). Federal courts can adjudicate only those cases which

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the Constitution and Congress authorize them to adjudicate – those involving diversity of

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citizenship or a federal question, or those to which the United States is a party.

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See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). The burden

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of establishing federal jurisdiction for purposes of removal is on the party seeking removal.

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Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). The district court must

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remand the case if it appears before final judgment that the court lacks subject matter

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jurisdiction. 28 U.S.C. § 1447(c).

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The complaint at issue, which was filed in San Mateo County Superior Court on

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September 30, 2009, alleges a single cause of action under state law, for unlawful detainer

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following a non-judicial foreclosure sale in May 2009. The complaint further alleges that on

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June 30, 2009, after GMAC’s title was perfected, it served a “Notice to Quit” on defendant,

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requiring him to quit and deliver up possession of the premises to GMAC. However,

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For the Northern District of California

United States District Court

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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

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prayer for relief, Provident seeks “[r]estitution and possession of the Premises,” and

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“damages at the rate of $90.00 or more per day upon proof at trial from September 29,

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2009 until date of judgment.” On April 19, 2011, the San Mateo Superior Court entered

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judgment in favor of GMAC. The judgment notes that defendant “failed to appear.”

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Also on April 19, 2011, defendant filed a notice of removal, asserting federal

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question jurisdiction. Defendant alleges that federal question jurisdiction exists because his

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“demurrer, a pleading, depend[s] on the determination of [d]efendants’ rights and [p]laintiff’s

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duties under federal law.”

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In the present motion, GMAC argues that removal was untimely, and that defendant

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has not met his burden of establishing that this court has federal question jurisdiction.

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GMAC also asserts that the notice of removal was filed for an improper purpose (to avoid a

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lawful eviction) and that defendant cannot effect a removal of the case because the

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judgment was already entered by the state court.

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Under 28 U.S.C. § 1447(c), the district court is required to remand state law claims

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where the court lacks removal jurisdiction – that is, where there is no federal question or

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diversity jurisdiction. Albingia Versicherungs A.G. v. Schenker Int’l, Inc., 344 F.3d 931, 936

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(9th Cir. 2003). Federal courts have no power to consider claims for which they lack
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subject-matter jurisdiction. See Chen-Cheng Wang ex rel. United States v. FMC Corp.,

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975 F.2d 1412, 1415 (9th Cir. 1992).

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In ruling on a motion to remand for lack of subject matter jurisdiction, the court looks

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only to the face of the complaint. See Toumajian v. Frailey, 135 F.3d 648, 653 n.2 (9th Cir.

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1998); see also Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 692-93 (9th Cir. 2005).

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Here, the court finds no federal question pled in the unlawful detainer action. Nor does the

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amount in controversy pled in the unlawful detainer action exceed $75,000. Accordingly,

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as the court lacks subject matter jurisdiction, it is ORDERED that this case be remanded to

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the Alameda County Superior Court.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: May 6, 2011
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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