Bank of New York Mellon v. Guevara-Martinez

Filing 12

ORDER GRANTING PLAINTIFF'S 5 MOTION TO REMAND AND GRANTING DEFENDANT'S 2 APPLICATION TO PROCEED IN FORMA PAUPERIS. Signed by Judge Claudia Wilken on 1/9/2012. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 1/9/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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THE BANK OF NEW YORK, AS
SUCCESSOR INDENTURE TRUSTEE UNDER
NOVASTAR MORTGAGE FUNDING TRUST
SERIES 2006-1,

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v.
LUIS GUEVARA-MARTINEZ,
Defendant.

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ORDER GRANTING
PLAINTIFF'S MOTION
TO REMAND AND
GRANTING
DEFENDANT'S
APPLICATION TO
PROCEED IN FORMA
PAUPERIS

Plaintiff,

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No. C 11-5474 CW

________________________________/

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On November 10, 2011, Defendant Luis Guevara-Martinez removed
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this case from the Alameda County Superior Court and moved for
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leave to proceed in forma pauperis (IFP).

From the face of the

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application it appears that Defendant meets the financial
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requirements to proceed IFP and the application to proceed IFP is
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granted.
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On December 8, 2011, Defendant Bank of New York moved for
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remand.

Opposition to the motion to remand was due on December

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22, 2011, but has not been filed.

The Court has reviewed the

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removed complaint and concludes that it must be remanded.
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A defendant may remove a civil action filed in state court to

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federal district court so long as the district court could have

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exercised original jurisdiction over the matter.

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§ 1441(a).

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question jurisdiction or diversity jurisdiction.

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Bd. of State of California v. Construction Laborers Vacation Trust

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for Southern California, 463 U.S. 1, 10 (1983).

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have federal question jurisdiction over civil actions arising

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under the United States Constitution, laws or treaties of the

28 U.S.C.

For removal to be proper, there must be federal
Franchise Tax

District courts

United States District Court
For the Northern District of California

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United States.

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jurisdiction over civil actions when they are between citizens of

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different states and the amount in controversy exceeds $75,000.

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28 U.S.C. § 1332(a).

28 U.S.C. § 1331.

District courts have diversity

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Title 28 U.S.C. § 1447(c) provides that if, at any time

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before judgment, it appears that the district court lacks subject

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matter jurisdiction over a case previously removed from state

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court, the case must be remanded.

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scope of the removal statute must be strictly construed.

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Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

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presumption’ against removal jurisdiction means that the defendant

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always has the burden of establishing that removal is proper.”

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Id.

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remanding the case to state court.

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On a motion to remand, the
Gaus v.

“The ‘strong

Courts should resolve doubts as to removability in favor of
Id.

This removed case is a residential unlawful detainer action

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following a judicial foreclosure.

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for unlawful detainer, which arises exclusively under state law.

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In his notice of removal, Defendant argues that federal question

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jurisdiction exists because Plaintiff has violated the federal

It contains one cause of action

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Protecting Tenants at Foreclosure Act of 2009 which "raises

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questions as to what rights tenants have because of the effect of

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foreclosure."

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question jurisdiction is governed by the well-pleaded complaint

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rule, which provides that federal jurisdiction exists only when a

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federal question is presented on the face of the plaintiff's

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properly pleaded complaint.'"

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U.S. 470, 475 (1998) (quoting Caterpillar Inc. v. Williams, 482

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U.S. 386 (1987)).

However, "[t]he presence or absence of federal-

Rivet v. Regions Bank of La., 522

A federal defense is not part of a plaintiff's

United States District Court
For the Northern District of California

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properly pleaded statement of his or her claim.

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Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987).

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case, therefore, may not be removed to the federal court based on

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a federal defense "even if the defense is anticipated in the

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plaintiff's complaint, and even if both parties admit that the

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defense is the only question truly at issue in the case."

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Franchise Tax Bd., 463 U.S. at 14; see Rivet, 522 U.S. at 475.

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Because the only possible federal issue in this case involves a

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defense, federal question jurisdiction is lacking.

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Id. (citing
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The complaint alleges that Plaintiff seeks damages in an

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amount not to exceed $10,000.

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is less than $75,000, diversity jurisdiction is lacking.

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Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 291 (1938)

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(the status of the case as disclosed by the plaintiff's complaint

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is controlling for purposes of removal).

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Because the amount in controversy
See St.

Because there is no federal question or diversity

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jurisdiction, this Court lacks subject matter jurisdiction over

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this case and it must be remanded.

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CONCLUSION
For the foregoing reasons, the Court grants Defendant's

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motion to remand this case to the Alameda County Superior Court

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and grants Plaintiff's application to proceed IFP.

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IT IS SO ORDERED.
Dated: 1/9/2012
CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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