Deutsche Bank National Trust Company v. Baltazar et al
Filing
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ORDER REMANDING CASE. Signed by Judge Hamilton on 6/13/2012. (pjhlc1, COURT STAFF) (Filed on 6/13/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California
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DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE OF THE
INDYMAC INDX MORTGAGE LOAN
TRUST 2006-AR15, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2006AR15 UNDER THE POOLING AND
SERVICING AGREEMENT DATED MAY 1,
2006,
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No. C 12-2281 PJH
ORDER REMANDING CASE
Plaintiff,
v.
ROGELIO BALTAZAR; DOLORES
BALTAZAR; et al.,
Defendants.
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Dolores Baltazar, defendant in the above-entitled action, removed this action from
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the Superior Court of California, County of Alameda, on May 7, 2012, alleging diversity
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jurisdiction and also possibly federal question jurisdiction. Both Dolores Baltazar and
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Rogelio Baltazar (named as a defendant in the state court action, but not listed as a
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removing defendant in the notice of removal) also seek leave to proceed in forma pauperis.
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This is an unlawful detainer action brought by plaintiff Deutsche Bank National Trust
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Company, as Trustee of the Indymac Indx Mortgage Loan Trust 2006-AR15, Mortgage
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Pass-Through Certificates, Series 2006-AR15 under the Pooling and Servicing Agreement
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dated May 1, 2006 (“DBNTC”) against defendants Dolores Baltazar and Rogelio Baltazar.
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The action was filed following an April 15, 2010 non-judicial foreclosure sale of residential
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property previously owned by defendants. On April 20, 2010, DBNTC served defendants a
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three-day written notice to quit.
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Defendants failed to vacate the premises at the end of the three-day period. DBNTC
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filed the unlawful detainer complaint as Case No. HG10512688 in Alameda County
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Superior Court on May 3, 2010. DBNTC seeks to recover possession of the property, and
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also seeks damages at the rate of $50.00 per day from April 23, 2010 until the date of
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judgment. On May 7, 2012, Dolores Baltazar filed a notice of removal, and the case was
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removed to this court as Case No. C12-2281.
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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
United States District Court
For the Northern District of California
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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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For purposes of removal, the party seeking removal carries the burden of
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establishing federal jurisdiction. Geographic Expeditions, Inc. v. Estate of Lhotka ex rel.
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Lhotka, 599 F.3d 1102, 1106-07 (9th Cir. 2010) (citing Gaus v. Miles, Inc., 980 F.2d 564,
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567 (9th Cir. 1992)). The district court shall remand the case if it appears before final
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judgment that the court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c); see also
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Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. 635, 638 (2009). Federal courts can
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adjudicate only those cases which the Constitution and Congress authorize them to
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adjudicate – those involving diversity of citizenship or a federal question, or those to which
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the United States is a party. Mims v. Arrow Financial Services, LLC, 132 S. Ct. 740, 747
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(2012) (quoting 28 U.S.C. § 1331); see also Chen-Cheng Wang ex rel. United States v.
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FMC Corp., 975 F.2d 1412, 1415 (9th Cir. 1992) (“[f]ederal courts have no power to
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consider claims for which they lack subject-matter jurisdiction”).
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Subject matter jurisdiction is determined from the face of the complaint. See
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Smallwood v. Allied Van Lines, Inc., 660 F.3d 1115, 1120 (9th Cir. 2011) (quoting
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Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (“federal jurisdiction exists only when
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a federal question is presented on the face of the plaintiff’s properly pleaded complaint”));
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see also Fifty Assocs. v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1189-90 (9th Cir. 1970)
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(existence of diversity jurisdiction must be sufficient on the face of the complaint).
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Jurisdiction may not be based on a claim raised as a defense or a counterclaim. K2
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America Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024, 1029 (9th Cir. 2011) (citing Vaden
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v. Discover Bank, 556 U.S. 49, 59 (2009)).
In this case, no federal question appears on the face of the complaint. Dolores
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Baltazar asserts that jurisdiction is proper under the laws of the United States, but does not
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point to anything in the complaint to support that allegation. Nor, indeed, has the court
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located anything in the complaint that raised a federal statutory or constitutional provision
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as the basis for the unlawful detainer action. Rather, the complaint alleges only a single
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United States District Court
For the Northern District of California
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claim under California Code of Civil Procedure § 1161a(b)(3). As no federal question is
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raised on the face of the complaint, there is no federal question jurisdiction.
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Additionally, there is no diversity jurisdiction. While it appears that Dolores Baltazar
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and DBNTC may be citizens of different states, the complaint seeks a money judgment of
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$50.00 per day, and specifies that the demand is “less than $10,000.” Thus, the amount-
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in-controversy requirement is not met. See 28 U.S.C. § 1332(a). Moreover, removal
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through diversity jurisdiction is not available to defendants that are citizens of the state in
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which the state action was brought. Lincoln Property Co. v. Roche, 546 U.S. 81, 83-4
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(2005) (citing 28 U.S.C. § 1441(b)). Therefore, Dolores Baltazar, as a resident of
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California, is not eligible to remove the case on grounds of diversity jurisdiction.
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Remand is appropriate for two additional reasons. First, all proper defendants in an
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action must join or consent to a 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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R.I. & P. Ry. Co. v. Martin, 178 U.S. 245, 247-48 (1990)). Here, only Dolores Baltazar is
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listed on the notice of removal, thus, Rogelio Baltazar’s absence is a procedural defect.
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Second, as a general rule “[a] defendant seeking to remove from state to federal court must
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file a notice of removal within thirty days of receiving a copy of the initial pleading.”
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Destfino v. Reiswig, 630 F.3d 952, 954 (9th Cir. 2011) (citing 28 U.S.C. § 1446(b)).
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Dolores Baltazar’s notice of removal is untimely, as it was filed more than two years after
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receipt of the initial complaint.
Accordingly, the action is hereby REMANDED to the Alameda County Superior
Court. Defendants’ applications to proceed forma pauperis are DENIED as moot.
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IT IS SO ORDERED.
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Dated: June 13, 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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