The Bank of New York Mellon v. Ramirez et al

Filing 8

ORDER Remanding Case for Lack of Subject Matter Jurisdiction. Signed by Judge Hamilton on 5/2/2012. (pjhlc1, COURT STAFF) (Filed on 5/3/2012) (Additional attachment(s) added on 5/3/2012: # 1 Certificate/Proof of Service) (nah, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THE BANK OF NEW YORK MELLON,

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For the Northern District of California

United States District Court

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Plaintiff,
v.

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ORDER REMANDING CASE

ALEJANDRO RAMIREZ, et al.,

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No. C 12-1248 PJH

Defendants.
_______________________________/

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Luis Guevara-Martinez (“Guevara-Martinez”), claiming to be the defendant in the

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above-entitled action, removed the action from the Superior Court of California, County of

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Alameda, on March 13, 2012, alleging both federal question and diversity jurisdiction.

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Guevara-Martinez also seeks leave to proceed in forma pauperis.

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

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Successor Indenture Trustee Under Novastar Mortgage Funding Trust, Series 2006-1

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(“BNY Mellon”) against defendants Alejandro M. Ramirez and DOES 1-6, following a

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February 14, 2011 non-judicial foreclosure sale of residential property previously owned by

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Mr. Ramirez.

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The court finds that the case must be remanded for lack of subject matter

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jurisdiction. Subject matter jurisdiction is fundamental and cannot be waived. Billingsly v.

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C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989). Federal courts can adjudicate only those

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cases which the Constitution and Congress authorize them to adjudicate – those involving

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diversity of citizenship or a federal question, or those to which the United States is a party.

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Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994); see also Chen-

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Cheng Wang ex rel. United States v. FMC Corp., 975 F.2d 1412, 1415 (9th Cir. 1992)

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(federal courts have no power to consider claims for which they lack subject-matter

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jurisdiction).

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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, however, so as to limit removal jurisdiction. Shamrock Oil & Gas

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Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); see also Matheson v. Progressive Specialty

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Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003).
The burden of establishing federal jurisdiction for purposes of removal is on the party

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For the Northern District of California

United States District Court

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seeking removal. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). The

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district court must remand the case if it appears before final judgment that the court lacks

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subject matter jurisdiction. 28 U.S.C. § 1447(c); Albingia Versicherungs A.G. v. Schenker

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Int’l, Inc., 344 F.3d 931, 936 (9th Cir. 2003).

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Subject matter jurisdiction is determined from the face of the complaint. Toumajian

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v. Frailey, 135 F.3d 648, 653 n.2 (9th Cir. 1998) (“[f]or removal to be appropriate, a federal

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question must appear on the face of the complaint”); see also Caterpillar Inc. v. Williams,

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482 U.S. 386, 392 (1987) (federal question must be presented on face of plaintiff’s properly

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pleaded complaint); Fifty Assocs. v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1189-90

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(9th Cir. 1970) (existence of diversity jurisdiction must be sufficient on the face of the

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complaint). Jurisdiction may not be based on a claim raised as a defense or a

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counterclaim. See Smith v. Grimm, 534 F.2d 1346, 1350 (9th Cir. 1976).

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

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unlawful detainer to recover possession of property following a non-judicial foreclosure sale

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of the property. A copy of the complaint is attached as an exhibit to the notice of removal.

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The complaint alleges that on March 6, 2011, following the non-judicial foreclosure

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sale, BNY Mellon served a three-day notice to quit, on Mr. Ramirez. Mr. Ramirez failed to

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vacate premises at the end of the three-day period. BNY Mellon filed the unlawful detainer
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complaint as Case No. RG 11566303 on March 17, 2011 in the Alameda County Superior

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Court.

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The notice of removal alleges no facts from which the court can find that it has

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federal question jurisdiction under 28 U.S.C. § 1331. Guevara-Martinez asserts that

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jurisdiction is proper under the laws of the United States, but does not point to anything in

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the complaint to support that allegation. Nor, indeed, has the court located anything in the

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complaint that raises a federal statutory or constitutional provision as the basis for the

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unlawful detainer action. Rather, the complaint alleges only a single claim under California

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Code of Civil Procedure § 1161a. As no federal question is raised on the face of the
complaint, there is no federal question jurisdiction.

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For the Northern District of California

United States District Court

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Nor is there diversity jurisdiction under 28 U.S.C. § 1332, as the amount in

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controversy is under $75,000.00. The complaint specifies on the caption page that the

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demand “does not exceed $10,000.00” The complaint seeks restitution of the premises,

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and damages in the amount of $50.00 per day from March 10, 2011, up to the date of

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judgment, plus costs of suit. The amount in controversy is not the assessed value or the

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sales value of the property, but rather the $50.00 per day that BNY Mellon is seeking in

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damages. Thus, liability does not exceed $75,000.00.

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Accordingly, as the court lacks subject matter jurisdiction, the motion to remand is
GRANTED. The action is hereby REMANDED to the Alameda County Superior Court.1

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IT IS SO ORDERED.

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Dated: May 3, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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The court also finds that the case was improperly removed based on the fact that
Guevara-Martinez is not named as a defendant in the complaint, and Mr. Ramirez did not join
in the notice of removal.
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