Federal Home Mortgage Corporation v. Herrera et al

Filing 11

ORDER by Judge Hamilton granting 3 Motion for Leave to Proceed in forma pauperis; granting 8 Motion to Remand (pjhlc1, COURT STAFF) (Filed on 11/16/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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FEDERAL HOME LOAN MORTGAGE
CORPORATION,

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Plaintiff,
v.

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ORDER GRANTING MOTION
TO REMAND

RITA HERRERA, et al.,

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No. C 11-5131 PJH

Defendant.
_______________________________/

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Defendant Daniel Gonzalez removed this unlawful detainer action from the Superior

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Court of California, County of Stanislaus, on October 19, 2011, alleging federal question

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jurisdiction. On November 11, 2011, plaintiff Federal Home Loan Mortgage Corporation

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filed a motion to remand for lack of subject matter jurisdiction.

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The court has reviewed the notice of removal, the state court complaint, and the

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plaintiff’s motion, and finds that the motion must be GRANTED, and the case must be

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remanded for lack of subject matter jurisdiction.

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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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Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994); see also Chen-

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Cheng Wang ex rel. United States v. FMC Corp., 975 F.2d 1412, 1415 (9th Cir. 1992)

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(federal courts have no power to consider claims for which they lack subject-matter

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jurisdiction).

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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. The removal statutes are

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construed restrictively, however, so as to limit removal jurisdiction. Shamrock Oil & Gas

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

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Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003).

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The burden of establishing federal jurisdiction for purposes of removal is on the party
seeking removal. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). The

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For the Northern District of California

United States District Court

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district court must remand the case if it appears before final judgment that the court lacks

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subject matter jurisdiction. 28 U.S.C. § 1447(c); Albingia Versicherungs A.G. v. Schenker

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Int’l, Inc., 344 F.3d 931, 936 (9th Cir. 2003).

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Subject matter jurisdiction is determined from the face of the complaint. Toumajian

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v. Frailey, 135 F.3d 648, 653 n.2 (9th Cir. 1998) (“[f]or removal to be appropriate, a federal

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question must appear on the face of the complaint”); see also Caterpillar Inc. v. Williams,

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482 U.S. 386, 392 (1987) (federal question must be presented on face of plaintiff’s properly

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pleaded complaint); Fifty Assocs. v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1189-90

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(9th Cir. 1970) (existence of diversity jurisdiction must be sufficient on the face of the

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complaint). Jurisdiction may not be based on a claim raised as a defense or a

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counterclaim. See Smith v. Grimm, 534 F.2d 1346, 1350 (9th Cir. 1976).

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Plaintiff filed the complaint at issue in Stanislaus County Superior Court on May 2,

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2011, against defendants Rita Herrera, Sandra Rangel, and ten DOE defendants. The

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complaint alleges a single cause of action under state law, for unlawful detainer to recover

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possession of property following a non-judicial foreclosure sale of the property to FHLMC

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on December 16, 2010. A copy of the complaint, and a copy of the Trustee’s Deed Upon

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Sale (recorded in the Official Records of the County of Stanislaus on December 28, 2010),

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are attached as exhibits to the notice of removal.
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The complaint asserts that following the sale, on January 22, 2011, defendants were

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served with a 90-day written notice to vacate the premises, and that defendants failed to

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comply with the notice to vacate, which expired on April 24, 2011, and unlawfully remained

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in possession of the property as of the date of filing of the complaint. After the complaint

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was filed, Daniel Gonzalez entered an appearance, seeking an order quashing service of

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summons, claiming that he had not properly been served with the summons and complaint.

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The notice of removal alleges no facts from which the court can find that it has

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federal question jurisdiction under 28 U.S.C. § 1331. Daniel Gonzalez, the removing

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defendant, asserts that jurisdiction is proper under the laws of the United States, based on
alleged violations of his rights under federal law. He alleges that he is a tenant at the

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For the Northern District of California

United States District Court

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property in question, and that in seeking to evict him, plaintiff has failed to comply with

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provisions of the federal Helping Families Save Their Homes Act of 2009.

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However, while Mr. Gonzalez purported to remove the action under federal question

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jurisdiction by asserting that he has claims or defenses based on federal law, the complaint

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itself does not raise any federal statutory or constitutional provision as the basis for the

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unlawful detainer action. Rather, the complaint alleges only a single claim under California

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Code of Civil Procedure § 1161a. As no federal question is raised on the face of the

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complaint, there is no federal question jurisdiction.1

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Nor is there diversity jurisdiction under 28 U.S.C. § 1332, as the amount in

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controversy is under $75,000.00. The complaint specifies on the caption page that the

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demand “does not exceed $10,000.” The complaint seeks restitution of the premises, and

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damages in the amount of $28.80 per day from April 25, 2011, up to the date of judgment,

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plus costs of suit. The amount in controversy is not the assessed value or the sales value

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of the property, but rather the $28.80 per day that FHLMC is seeking in damages. Thus,

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liability does not exceed $75,000.00.

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Moreover, the Federal Home Loan Mortgage Corporation is not considered a federal
agency. See American Bankers Mortg. Corp. v. Federal Home Loan Mortgage Corporation,
75 F.3d 1401, 1406-09 (9th Cir. 1996).
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Accordingly, as the court lacks subject matter jurisdiction, and would have no power

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to consider any of defendants’ claims or defenses, the motion to remand is GRANTED.

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The action is hereby REMANDED to the Stanislaus County Superior Court.

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The clerk shall close the file and terminate any pending motions.

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IT IS SO ORDERED.

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Dated: November 16, 2011
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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