Murphy-Barnes v. Bank of America Corporation et al

Filing 34

ORDER by Judge Hamilton Granting 15 Motion to Remand and Denying 8 Motion to Dismiss as Moot (pjhlc2, COURT STAFF) (Filed on 11/9/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PAULETTE R. MURPHY-BARNES,
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Plaintiff,

No. C 11-3172 PJH

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v.
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BANK OF AMERICA CORPORATION,
et al.,

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Defendants.
_______________________________/

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For the Northern District of California

United States District Court

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ORDER GRANTING MOTION
TO REMAND AND DENYING
MOTION TO DISMISS AS MOOT

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Defendants’ motion to dismiss the complaint, and plaintiff’s motion for remand, came

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on for hearing before this court on November 9, 2011. Plaintiff Paulette R. Murphy-Barnes

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(“plaintiff”) appeared pro se. Defendants Bank of America Corporation (“Bank of America”)

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and Mortgage Electronic Registration Systems, Inc. (“MERS”)(collectively “defendants”),

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appeared through their counsel, Page Perry. Having read the parties’ papers and carefully

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considered both parties’ oral arguments and the relevant legal authority, and good cause

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appearing, the court hereby GRANTS plaintiff’s motion for remand, and DENIES

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defendants’ motion to dismiss as moot, for the reasons stated at the hearing, and

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summarized as follows.

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A federal court may assert removal jurisdiction on the basis of federal question

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jurisdiction if the plaintiff's claims are either exclusively federal, or there is a separate and

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independent federal question raised in the complaint. See 28 U.S.C. § 1441; Lyons v.

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Alaska Teamsters Emp’r Serv. Corp., 188 F.3d 1170, 1172 (9th Cir. 1999). Here,

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defendants Bank of America and MERS assert federal subject matter jurisdiction based on

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plaintiff’s second cause of action alleging Fair Credit Reporting Act violations, and plaintiff’s

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fifth cause of action alleging violation of the Real Estate Settlement Procedures Act

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(“RESPA”). See Notice of Removal, ¶ 3. As plaintiff notes, however, defendants’ failure to

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join remaining defendant SCME Mortgage Bankers, Inc. (“SCME”) in removal constitutes a

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bar to removal. While defendants assert that joinder of SCME is unnecessary due to the

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“separate and independent” nature of the second and fifth causes of action asserted

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against defendants – which finding would, if credited, allow for removal without SCME’s

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consent – this argument is ultimately unpersuasive. As the Ninth Circuit has previously

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noted, the term “separate and independent claim or cause of action” under section 1441(c)

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has been narrowly construed to preclude removal jurisdiction on this basis where “there is a

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single wrong to plaintiff, for which relief is sought, arising from an interlocked series of

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transactions.” Desert Empire Bank v. Ins. Co. of North Am., 623 F.2d 1371, 1377 (9th Cir.
1980). Here, the court concludes plaintiff has similarly alleged a single wrong for which

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For the Northern District of California

United States District Court

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relief is sought arising from an interlocked series of transactions – i.e., defendants’ wrongful

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transfer of plaintiff’s real property amongst themselves, wrongful charging of late fees, and

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allegations that defendants unlawfully “set plaintiff up” for unlawful foreclosure.

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Furthermore, although defendants assert that the second and fifth claims are stated solely

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against defendants Bank of America and MERS, the complaint itself makes no such

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distinction and alleges violations by all “defendants” collectively. See, e.g., Complaint ¶ 23

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(“it remains unclear who exactly is the lender and/or the servicer”); id., ¶ 32 (alleging

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violations by “defendants”). Thus, there is no separate and independent claim or cause of

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action against the removing defendants alone under section 1441(c), and defendants’

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failure to join defendant SCME in removal prevents the court from properly asserting

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federal question jurisdiction over the action.

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Accordingly, plaintiff’s motion to remand the action to Alameda Superior Court is

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GRANTED. Defendants’ accompanying motions to dismiss are furthermore DENIED as

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MOOT.

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IT IS SO ORDERED.

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Dated: November 9, 2011
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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