Federal Home Loan Mortgage Corporation v. Tulley et al

Filing 9

ORDER That Case Be Reassigned to a District Judge; REPORT AND RECOMMENDATIONS re 5 MOTION to Remand. Objections due by 4/12/2012. Signed by Magistrate Judge Howard R. Lloyd on 3/26/2012. (hrllc2, COURT STAFF) (Filed on 3/26/2012)

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*E-FILED: March 26, 2012*

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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For the Northern District of California

United States District Court

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No. C12-00188 HRL

FEDERAL HOME LOAN MORTGAGE
CORPORATION,

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ORDER THAT CASE BE REASSIGNED
TO A DISTRICT JUDGE

Plaintiff,
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REPORT AND RECOMMENDATION RE
MOTION TO REMAND

v.
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MARGARITA TORRES; SHARON TULLEY,
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[Re: Docket Nos. 5, 6]
Defendants.

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Sharon Tulley removed this unlawful detainer case from the Santa Clara County

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Superior Court. Plaintiff Federal Home Loan Mortgage Corporation moves to remand and

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requests that its motion be heard on shortened time. This court has not received any opposition

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to the motion, and the time for filing any opposition or response has passed. The matter is

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deemed suitable for determination without oral argument. The noticed April 3, 2012 hearing is

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vacated, and plaintiff’s motion for an order shortening time is denied. Civ. L.R. 7-1(b). For the

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reasons stated below, the undersigned recommends that plaintiff’s motion for remand be

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granted.

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Removal to federal court is proper where the federal court would have original subject

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matter jurisdiction over the complaint. 28 U.S.C. § 1441. “If it clearly appears on the face of

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the notice and any exhibits annexed thereto that removal should not be permitted, the court shall

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make an order for summary remand.” 28 U.S.C. § 1446(c)(4) (emphasis added). These

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removal statutes are strictly construed against removal and place the burden on the defendant to

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demonstrate that removal was proper. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241,

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1244 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).

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Tulley has failed to show that removal is proper based on any federal substantive law.

unlawful detainer action. Federal courts have original jurisdiction over civil actions “arising

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under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A claim

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“arises under” federal law if, based on the “well-pleaded complaint rule,” the plaintiff alleges a

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federal claim for relief. Vaden v. Discovery Bank, 129 S. Ct. 1262, 1272 (2009). Defenses and

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For the Northern District of California

In her notice of removal, she asserts that plaintiff has violated federal law in pursuing the

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United States District Court

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counterclaims asserting a federal question do not satisfy this requirement. Id. The record

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indicates that plaintiff’s complaint presents claims arising only under state law and does not

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allege any federal claims whatsoever. Defendants’ allegations in a removal notice or in a

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response to plaintiff’s complaint cannot provide this court with federal question jurisdiction.

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Defendant does not establish diversity jurisdiction. In any event, the complaint indicates

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that the amount demanded does not exceed $10,000. And, as a California defendant, Tulley

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cannot remove this action to federal court under diversity jurisdiction. 28 U.S.C. § 1441(b)

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(stating that an action is removable for diversity “only if none of the parties in interest properly

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joined and served as defendants is a citizen of the State in which such action is brought”);

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Spencer v. U.S. Dist. Ct., 393 F.3d 867, 870 (9th Cir. 2004) (“It is thus clear that the presence

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of a local defendant at the time removal is sought bars removal.”).

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Because not all parties have consented to the undersigned’s jurisdiction, this court

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ORDERS the Clerk of the Court to reassign this case to a District Judge. The undersigned

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further RECOMMENDS that the newly assigned judge grant plaintiff’s motion and remand the

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case to Santa Clara County Superior Court. Pursuant to Federal Rule of Civil Procedure 72(b),

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any party may serve and file objections to this Report and Recommendation within fourteen

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days after being served.

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SO ORDERED.

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Dated: March 26, 2012

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HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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For the Northern District of California

United States District Court

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5:12-cv-00188-HRL Notice has been electronically mailed to:

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Poonam Renee Belcastro

[e-mail]

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5:12-cv-00188-HRL Notice sent by U.S. Mail to:

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Sharon Tulley
3012 East Hills Drive
San Jose, CA 95127

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For the Northern District of California

United States District Court

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