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)

Download PDF
1 2 *E-FILED: March 26, 2012* 3 4 5 6 NOT FOR CITATION 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 For the Northern District of California United States District Court 7 No. C12-00188 HRL FEDERAL HOME LOAN MORTGAGE CORPORATION, 12 ORDER THAT CASE BE REASSIGNED TO A DISTRICT JUDGE Plaintiff, 13 REPORT AND RECOMMENDATION RE MOTION TO REMAND v. 14 MARGARITA TORRES; SHARON TULLEY, 15 [Re: Docket Nos. 5, 6] Defendants. 16 / 17 18 Sharon Tulley removed this unlawful detainer case from the Santa Clara County 19 Superior Court. Plaintiff Federal Home Loan Mortgage Corporation moves to remand and 20 requests that its motion be heard on shortened time. This court has not received any opposition 21 to the motion, and the time for filing any opposition or response has passed. The matter is 22 deemed suitable for determination without oral argument. The noticed April 3, 2012 hearing is 23 vacated, and plaintiff’s motion for an order shortening time is denied. Civ. L.R. 7-1(b). For the 24 reasons stated below, the undersigned recommends that plaintiff’s motion for remand be 25 granted. 26 Removal to federal court is proper where the federal court would have original subject 27 matter jurisdiction over the complaint. 28 U.S.C. § 1441. “If it clearly appears on the face of 28 the notice and any exhibits annexed thereto that removal should not be permitted, the court shall 1 make an order for summary remand.” 28 U.S.C. § 1446(c)(4) (emphasis added). These 2 removal statutes are strictly construed against removal and place the burden on the defendant to 3 demonstrate that removal was proper. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 4 1244 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). 5 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 8 under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A claim 9 “arises under” federal law if, based on the “well-pleaded complaint rule,” the plaintiff alleges a 10 federal claim for relief. Vaden v. Discovery Bank, 129 S. Ct. 1262, 1272 (2009). Defenses and 11 For the Northern District of California In her notice of removal, she asserts that plaintiff has violated federal law in pursuing the 7 United States District Court 6 counterclaims asserting a federal question do not satisfy this requirement. Id. The record 12 indicates that plaintiff’s complaint presents claims arising only under state law and does not 13 allege any federal claims whatsoever. Defendants’ allegations in a removal notice or in a 14 response to plaintiff’s complaint cannot provide this court with federal question jurisdiction. 15 Defendant does not establish diversity jurisdiction. In any event, the complaint indicates 16 that the amount demanded does not exceed $10,000. And, as a California defendant, Tulley 17 cannot remove this action to federal court under diversity jurisdiction. 28 U.S.C. § 1441(b) 18 (stating that an action is removable for diversity “only if none of the parties in interest properly 19 joined and served as defendants is a citizen of the State in which such action is brought”); 20 Spencer v. U.S. Dist. Ct., 393 F.3d 867, 870 (9th Cir. 2004) (“It is thus clear that the presence 21 of a local defendant at the time removal is sought bars removal.”). 22 Because not all parties have consented to the undersigned’s jurisdiction, this court 23 ORDERS the Clerk of the Court to reassign this case to a District Judge. The undersigned 24 further RECOMMENDS that the newly assigned judge grant plaintiff’s motion and remand the 25 case to Santa Clara County Superior Court. Pursuant to Federal Rule of Civil Procedure 72(b), 26 any party may serve and file objections to this Report and Recommendation within fourteen 27 28 2 1 days after being served. 2 SO ORDERED. 3 Dated: March 26, 2012 4 HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 5:12-cv-00188-HRL Notice has been electronically mailed to: 2 Poonam Renee Belcastro rbelcastro@piteduncan.com 3 4 5:12-cv-00188-HRL Notice sent by U.S. Mail to: 5 Sharon Tulley 3012 East Hills Drive San Jose, CA 95127 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?