U.S. Bank National Association v. Chan

Filing 12

Order by Magistrate Judge Laurel Beeler granting 4 Motion to Remand.(lblc1, COURT STAFF) (Filed on 11/4/2011)

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UNITED STATES DISTRICT COURT

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Northern District of California

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Oakland Division
US BANK NATIONAL ASSOCIATION,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Plaintiff,

No. C 11-04394 LB
ORDER GRANTING PLAINTIFF’S
MOTION TO REMAND

v.
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HECTOR CHAN,

[ECF No. 4]

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Defendant.
_____________________________________/

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I. INTRODUCTION
Defendant Hector Chan removed Plaintiff U.S. Bank National Association’s complaint for

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unlawful detainer from the California state court, asserting the existence of federal-question

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jurisdiction on the basis that Plaintiff’s notice allegedly was defective under the federal Protecting

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Tenants at Foreclosure Act (“PTFA”), 12 U.S.C. § 5220. Notice of Removal, ECF No. 1 at 2-3, ¶¶

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6, 10.1 Plaintiff now brings this motion to remand. Motion to Remand, ECF No. 4 at 2. The court

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grants Plaintiff’s motion because Defendant’s removal was untimely, the unlawful detainer action

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presents only a state claim on its face, and the PTFA provides tenants with federal defenses to

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eviction but does not create federal-question jurisdiction.

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Both parties have consented to the court’s jurisdiction. ECF Nos. 8 and 10. Defendant did not
file an opposition to Plaintiff’s motion. See N.D. L.R. 7-3(a) (requiring opposition briefs to be filed

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Citations are to the Electronic Case File (“ECF”) with pin cites to the electronic page
number at the top of the document, not the pages at the bottom.
C 11-04394 LB
REMAND ORDER

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within fourteen days after the motion is served and filed). After considering the case history,

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Plaintiff’s brief, and law, the court determines that this matter is appropriate for resolution without

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oral argument. N.D. Cal. L.R. 7-1(b).

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II. FACTS

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On or about January 6, 2006, Defendant purchased a residential real property commonly

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described as 1375 Monte Maria Avenue, Novato, California (the “subject property”). Defendant

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later defaulted on the Deed of Trust secured by the subject property, which ultimately led to a

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non-judicial foreclosure sale of the subject property.

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On February 17, 2011, Plaintiff purchased the subject property at the foreclosure sale, which was

No. 5 at 13-15. The transfer of title to the subject property was duly perfected in Plaintiff by the

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For the Northern District of California

held in accordance with California Civil Code § 2924, et. seq. Exh. A, ECF No. 1 at 11-13; ECF

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UNITED STATES DISTRICT COURT

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recording on March 1, 2011, of a Trustee’s Deed Upon Sale, in the official records of the Marin

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County Recorder's office, as Inst. No. 2011-00 12447. Id.

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On March 15, 2011, a California licensed process server served a Notice to Quit on Defendant,

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in compliance with California Code of Civil Procedure § 1161(a) and 1161(b). Exh. A, ECF No. 1

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at 14-16; Crosby Decl., ECF No. 4-2 at 7.

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The notice to quit expired. However, Defendant continues to remain in possession of the subject

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property despite not having held title to the subject property since March 1, 2011. ECF No. 5 at 20.

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Plaintiff filed a complaint in state court against Defendant, alleging only a single state law cause

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of action for unlawful detainer and specifically stating that the amount of damages sought does not

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exceed $10,00.00. ECF No. 5 at 8. On April 3, 2011, Defendant and other occupants were served

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via substituted service as well as by mail and posting at the subject residence. Crosby Decl., ECF

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No. 4-2 at 9-15. Defendant filed a demurrer in state court. ECF No. 1 at 17-22. And, on September

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2, 2011, Defendant filed a notice of removal. ECF No. 1 at 1.

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III. LEGAL STANDARDS

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A defendant in a state court may remove an action to federal court so long as the action could

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C 11-04394 LB
REMAND ORDER

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have originally asserted federal-question jurisdiction.2 28 U.S.C. 1441(b). The action must be

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removed within 30 days of service of the initial pleading. 28 U.S.C. 1446(b). The defendant has the

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burden of proving the basis for the federal court’s jurisdiction. Shizuko Nishimoto v. Federman-

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Bachrach & Assocs., 903 F.2d 709, 712 (9th Cir. 1990). Removal jurisdiction statutes are strictly

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construed against removal. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941); Takeda

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v. Northwestern Nat’l. Life Ins. Co., 765 F.2d 815, 818 (9th Cir.1985).

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The “well-pleaded complaint” rule requires a federal question to be presented on the face of the

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plaintiff's complaint at the time of removal for federal-question jurisdiction to exist. Duncan v.

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Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). A plaintiff may “by eschewing claims based on federal

399 (1987). And an anticipated federal defense is not sufficient to confer jurisdiction. Franchise

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For the Northern District of California

law, choose to have the cause be heard in state court.” Caterpillar, Inc. v. Williams, 482 U.S. 386,

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UNITED STATES DISTRICT COURT

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Tax Bd. of California v. Construction Laborers Vacation Trust, 463 U.S. 1, 10 (1983). But a

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plaintiff may not defeat removal by omitting necessary federal questions from his or her complaint.

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Id. at 22.

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A federal court may exercise removal under the “artful pleading” doctrine even if a federal

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question does not appear on the face of the complaint. ARCO Environmental Remediation, L.L.C. v.

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Dep’t of Health and Environmental Quality of the State of Montana, 213 F.3d 1108, 1114 (9th Cir.

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2000). The artful pleading doctrine applies when: (1) federal law completely preempts state law; (2)

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the claim is necessarily federal in character; or (3) the right to relief depends on the resolution of a

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substantial, disputed federal question. Id. However, courts should “invoke the [artful pleading]

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doctrine only in limited circumstances as it raises difficult issues of state and federal relationships

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and often yields unsatisfactory results.” Lippitt v. Raymond James Financial Services, 340 F.3d

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1033, 1041 (9th Cir. 2003). Additionally, the “mere presence of a federal issue in a state cause of

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action does not automatically confer federal-question jurisdiction.” Merrell Dow Pharmaceuticals

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Inc. v. Thompson, 478 U.S. 804, 813 (1986).

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District courts have original jurisdiction over cases that arise under the law of the United
States. U.S. Const. art. III, § 2, cl.1.
C 11-04394 LB
REMAND ORDER

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IV. DISCUSSION
A. Whether the Complaint Was Timely Removed
Plaintiff argues that Defendant did not timely remove the complaint. Motion to Remand, ECF

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No. 4 at 7. Defendant did not file the notice of removal until September 2, 2011. Notice of

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Removal, ECF No. 1 at 1. Even if the court accepted the representation made in Defendant’s

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demurrer that he was not served until April 6, 2011, see ECF No. 1 at 20, his time to remove the

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action would have expired on May 6, 2011. 28 U.S.C. 1446(b). Accordingly, the court finds that

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Defendant’s removal was untimely.

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B. Whether the PTFA Provides a Basis for Federal-Question Jurisdiction

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Plaintiff states that its complaint asserts only a cause of action for unlawful detainer pursuant to
section 1161(a)(b)(3) of the California Code of Civil Procedure. Motion, ECF No 4 at 9. Defendant

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For the Northern District of California

UNITED STATES DISTRICT COURT

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asserted only federal-question jurisdiction as a basis for removal. Complaint, ECF No. 1 at 2, ¶ 6.

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As the court discussed in Wells Fargo Bank v. Lapeen, NO. C 11-01932 LB, 2011 WL 2194117

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(N.D. Cal. June 6, 2011), in these circumstances, the PTFA does not create federal-question

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jurisdiction.
V. CONCLUSION

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For the foregoing reasons, the court GRANTS Plaintiff’s motion to remand.

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This disposes of ECF No. 4.

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IT IS SO ORDERED.

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Dated: November 4, 2011
_______________________________
LAUREL BEELER
United States Magistrate Judge

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C 11-04394 LB
REMAND ORDER

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