Wells Fargo Bank, N.A. v. Kravitz

Filing 11

ORDER by Judge Beeler granting 8 Motion to Remand; denying 2 Motion for Leave to Proceed in forma pauperis (lblc1, COURT STAFF) (Filed on 1/24/2012)

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UNITED STATES DISTRICT COURT

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Northern District of California

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Oakland Division
WELLS FARGO BANK,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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No. C 11-05698 LB

Plaintiff,

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

v.
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JAN S KRAVITZ,
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Defendant.
_____________________________________/

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[ECF Nos. 2 and 8]

I. INTRODUCTION
Plaintiff Wells Fargo Bank moves to remand its unlawful detainer action to California state court

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after Defendant Jan S. Kravitz removed the matter, asserting the existence of federal-question

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

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Tenants at Foreclosure Act (“PTFA”), 12 U.S.C. § 5220. Motion to Remand, ECF No. 8 at 2;1

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Notice of Removal, ECF No. 1 at 2-3, ¶¶ 6-10. The court grants Plaintiff’s motion because the

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unlawful detainer action presents only a state claim on its face and the PTFA provides tenants with

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federal defenses to eviction but, by itself, does not create federal-question jurisdiction in this case.

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Both parties have consented to the court’s jurisdiction. ECF Nos. 6 and 7. Defendant did not

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file an opposition to Plaintiff’s motion. See N.D. Cal. L.R. 7-3(a) (requiring opposition papers to be

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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 11-05698 LB
ORDER GRANTING MOTION TO REMAND AND DENYING
APPLICATION TO PROCEED IN FORMA PAUPERIS

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filed within 14 days after the motion is served and filed). After considering the case history,

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Plaintiff’s brief, and the legal standards, the court determines that this matter is appropriate for

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resolution without oral argument. N.D. Cal. L. R. 7-1(b).

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II. FACTS

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The subject of these proceedings is a residential unit in of an apartment complex referred to as

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79 William Street Apt L, Cotati, California (the “subject property”). Complaint, ECF No. 1 at 7, ¶ 1.

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Defendant purchased the subject property on November 7, 2006. Exhibit, ECF No. 1 at 9.

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

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subject property being sold through a non-judicial foreclosure sale. Complaint, ECF No. 1 at 7, ¶ 5.

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Plaintiff acquired title to the subject property through that sale on July 13, 2011, which was held
in accordance with California Civil Code § 2924 et. seq. Id. The transfer of the subject property

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For the Northern District of California

UNITED STATES DISTRICT COURT

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was duly perfected in Plaintiff and was recorded in the official records of the Sonoma County

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Recorder’s office on July 21, 2011 as a Trustee’s Deed Upon Sale, Inst. No. 20110015001240.

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Exhibit, ECF No. 1 at 9-10.

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On July 23, 2011, a California licensed process server served Defendant with a Notice to Vacate

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Premises, in compliance with California Code of Civil Procedure § 1161 et. seq. Exhibit, ECF No. 1

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at 12-13.

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The Notice to Vacate expired sixty days later. Complaint, ECF No. 1 at 8, ¶ 6. Defendant

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continued to remain in possession of the subject property despite not having held title to the subject

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property since July 13, 2011. Id. at 8, ¶¶ 7-8.

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Plaintiff filed a complaint in state court against Defendant, alleging a sole state law cause of

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action for unlawful detainer. Id. at 7. Defendant filed a Demurrer in state court, which was not

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sustained. Notice of Removal, ECF No. 1 at 2, ¶ 8. And, on November 28, 2011, Defendant filed a

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notice of removal. Id. 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 11-05698 LB
ORDER GRANTING MOTION TO REMAND AND DENYING
APPLICATION TO PROCEED IN FORMA PAUPERIS

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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 11-05698 LB
ORDER GRANTING MOTION TO REMAND AND DENYING
APPLICATION TO PROCEED IN FORMA PAUPERIS

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IV. DISCUSSION

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Defendant’s sole claim for federal-question jurisdiction rests on the premise that Defendant’s

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own demurrer, alleging that Plaintiff failed to comply with the notice requirements of the PTFA, can

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qualify the matter for removal to federal court. Numerous courts have rejected this premise. See

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Takeda v. Northwestern Nat’l Life Ins. Co., 765 F.2d 815, 822 (9th Cir. 1985) (“It is well established

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that ‘removability cannot be created by defendant pleading a counter-claim presenting a federal

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question . . . .’”). Plaintiff correctly argues that its complaint asserts only a cause of action for

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unlawful detainer pursuant California Code of Civil Procedure section 1161a(b)(3). Motion, ECF

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No. 8 at 3. As the court discussed in Wells Fargo Bank v. Lapeen, No. C. 11-1932 LB, 2011 WL

question jurisdiction. Accordingly, the court GRANTS Defendant’s motion remand. And, given

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For the Northern District of California

2194117 (N.D. Cal. June 6, 2011), in these circumstances, the PTFA does not create federal-

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UNITED STATES DISTRICT COURT

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the disposition of Defendant’s motion, the court DENIES as moot Plaintiff’s application for leave to

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proceed in forma pauperis, which was filed as ECF No. 2.

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This disposes of ECF Nos. 2 and 8.

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IT IS SO ORDERED.

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Dated: January 24, 2012
_______________________________
LAUREL BEELER
United States Magistrate Judge

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C 11-05698 LB
ORDER GRANTING MOTION TO REMAND AND DENYING
APPLICATION TO PROCEED IN FORMA PAUPERIS

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