The Bank of New York Mellon v. Grimes et al

Filing 12

ORDER REMANDING CASE. Signed by Judge Hamilton on 6/14/2012. (pjhlc1, COURT STAFF) (Filed on 6/15/2012) (Additional attachment(s) added on 6/15/2012: # 1 Certificate/Proof of Service) (vlk, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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THE BANK OF NEW YORK MELLON FKA
THE BANK OF NEW YORK, AS TRUSTEE
FOR THE CERTIFICATEHOLDERS OF
CWALT, INC., ALTERNATIVE LOAN TRUST
2007-OH2, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2007-OH2,

United States District Court
For the Northern District of California

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No. C-12-1236 PJH
ORDER REMANDING CASE

Plaintiff,
v.
PETER H. GRIMES, AGNES C. GRIMES,
et al.,
Defendants.

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Peter H. Grimes, defendant in the above-entitled action, removed this action from

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the Superior Court of California, County of San Francisco, on March 12, 2012, alleging both

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diversity jurisdiction and federal question jurisdiction. This court has reviewed the notice of

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removal, as well as other relevant materials, and remands the case for lack of subject

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matter jurisdiction.

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This is an unlawful detainer action brought by the Bank of New York Mellon, as

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Trustee for the Certificateholders of CWALT, Inc., Alternative Loan Trust 2007-OH2,

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Mortgage Pass-Through Certificates, Series 2007-OH2 (“BNY Mellon”) against Peter H.

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Grimes and Agnes C. Grimes. BNY Mellon brought the action following an April 19, 2011,

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non-judicial foreclosure sale of residential property previously owned by the defendants.

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The Trustee’s Deed Upon Sale was recorded by the San Francisco County Recorder’s

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Office on May 12, 2011.

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On June 18, 2011, BNY Mellon served the defendants a written notice to quit

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by posting a copy on the property and by mailing a copy to the defendants because

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they could not be found on the premises. Three days passed and the defendants did not

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vacate and deliver possession of the property.

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BNY Mellon filed the unlawful detainer complaint as Case No. CUD-11-637498 in the

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Superior Court of California, County of San Francisco, on June 28, 2011. The Superior

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Court issued a default judgment in favor of BNY Mellon on August 10, 2011. BNY Mellon is

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seeking restitution, possession of the property, damages at the rate of $188.63 per day

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starting June 22, 2011, and costs of suit. Peter H. Grimes filed a notice of removal on

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March 12, 2012.

United States District Court
For the Northern District of California

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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, so as to limit removal jurisdiction. Luther v. Countrywide Home

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Loans Servicing LP, 533 F.3d 1031, 1034 (9th Cir. 2008) (citing Shamrock Oil & Gas Corp.

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v. Sheets, 313 U.S. 100, 108-09 (1941)).

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The party seeking removal assumes the burden of establishing federal jurisdiction.

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Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). Moreover, subject matter

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jurisdiction is determined from the face of the complaint. See Smallwood v. Allied Van

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Lines, Inc., 660 F.3d 1115, 1120 (9th Cir. 2011) (quoting Caterpillar Inc. v. Williams, 482

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U.S. 386, 392 (1987) (“federal jurisdiction exists only when a federal question is presented

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on the face of the plaintiff’s properly pleaded complaint.”)). Likewise, “diversity jurisdiction

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must be sufficient on the face of the complaint.” Fifty Assocs. v. Prudential Ins. Co. of Am.,

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446 F.2d 1187, 1190 (9th Cir. 1970). In addition, jurisdiction may not be based on a claim

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raised as a defense or a counterclaim. K2 America Corp. v. Roland Oil & Gas, LLC, 653

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F.3d 1024, 1029 (9th Cir. 2011) (citing Vaden v. Discover Bank, 556 U.S. 49, 59 (2009)).

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The complaint in this case alleges a cause of action under state law for unlawful

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detainer to recover possession of property. In seeking to allege federal question

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jurisdiction, Peter H. Grimes asserts violation of his due process rights under the

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Fourteenth Amendment to the United States Constitution, “atypical and significant hardship
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standard of rules of the United States Supreme Court in relation to property rights,” federal

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question based on the “Pooling and Service Agreement of the Alternative Loan Trust 2007-

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OH2,” as well as unlawful foreclosure and standing by BNY Mellon. Notice of Removal

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¶¶ 8-12. However, the complaint itself does not raise any federal statutory or constitutional

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provision as the basis for the unlawful detainer action. Instead, the complaint alleges a

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single cause of action pursuant to California Code of Civil Procedure § 1161a(b) and

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§ 1161a(c). As such, Peter H. Grimes’ allegations are construed as counterclaims and

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defenses to the unlawful detainer action and because there is no federal question raised on

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the face of the complaint, there is no federal question jurisdiction.

United States District Court
For the Northern District of California

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Federal diversity jurisdiction also does not exist. Although BNY Mellon and the

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defendants may be citizens of different states, the complaint seeks a money judgment of

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$188.63 per day starting June 22, 2011, and specifies that “the demand does not exceed

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$10,000.” Thus, the amount in controversy requirement of $75,000.00 is not met. See 28

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U.S.C. § 1332(a). Furthermore, a defendant who is a resident of the state where a state

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cause of action is brought, may not remove the case based on diversity jurisdiction.

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Lincoln Property Co. v. Roche, 546 U.S. 81, 83-4 (2005) (quoting 28 U.S.C. § 1441(b)).

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Thus, Peter H. Grimes, a resident of California, may not remove the case based on

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diversity jurisdiction.

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Removal was improper for two additional reasons. First, all defendants who have

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been served must join in the notice of removal. See 28 U.S.C. § 1446(b)(2); see also

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Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1225 (9th Cir. 2009) (citing Chicago,

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Rock Island & Pacific Railway Co. v. Martin, 178 U.S. 245, 247-48 (1900)). Here, only

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Peter H. Grimes is listed as a party on the notice of removal and the absence of at least

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Agnes C. Grimes renders the notice as inadequate. Second, where a defendant attempts

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to remove a case where the plaintiff has already been granted final judgment, there is no

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case to remove. U.S. Bank Nat’l Ass’n v. Ramirez, 2010 WL 4736318 (C.D. Cal. 2010);

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see also Four Keys Leasing & Maintenance Corp. v. Simithis, 849 F.2d 770, 774 (9th Cir.

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1988). Here, the Superior Court issued a default judgment in favor of BNY Mellon on
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August 10, 2011. Therefore, there is no case for Peter H. Grimes to remove.

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Accordingly, the action is hereby REMANDED to the San Francisco County Superior
Court.

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IT IS SO ORDERED.

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Dated: June 15, 2012
PHYLLIS J. HAMILTON
United States District Judge

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United States District Court
For the Northern District of California

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