GMAC Mortgage, LLC v. Amaya et al

Filing 12

ORDER REMANDING CASE TO ALAMEDA COUNTY SUPERIOR COURT; Denying 3 MOTION for Leave to Proceed in forma pauperis filed by Jose Amaya,and Denying 4 MOTION for Leave to Proceed in forma pauperis filed by Maria Elena Montano, Motions terminated. Signed by Judge Yvonne Gonzalez Rogers on 11/26/12. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 11/26/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GMAC MORTGAGE, LLC, formerly known
as GMAC MORTGAGE CORPORATION,
Plaintiff,

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United States District Court
Northern District of California

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Case No.: 4:12-cv-05028-YGR
ORDER DENYING APPLICATIONS TO
PROCEED IN FORMA PAUPERIS AND
REMANDING ACTION TO STATE COURT

vs.
JOSE AMAYA, MARIA ELENA
MONTANO, and MAIRA ISABEL FLORES,
Defendants.

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Defendants Jose Amaya and Maria Elena Montano have filed Applications to Proceed in

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Forma Pauperis. (Dkt. Nos. 3 & 4.) Pursuant to 28 U.S.C. section 1915, a district court may

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authorize the commencement of a civil action in forma pauperis if the court is satisfied that the

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would-be plaintiff cannot pay the filing fees necessary to pursue the action. 28 U.S.C. §

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1915(a)(1). The court may deny in forma pauperis status, however, if it appears from the face of

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the proposed complaint that the action is frivolous or without merit. O’Loughlin v. Doe, 920 F.2d

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614, 616 (9th Cir. 1990); Tripati v. First National Bank & Trust, 821 F.2d 1368, 1370 (9th Cir.

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1987). In addition, federal courts are under a duty to raise and decide issues of subject matter

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jurisdiction sua sponte at any time it appears subject matter jurisdiction may be lacking. Fed. R.

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Civ. P. 12(h)(3); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). If the Court

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determines that subject matter jurisdiction is lacking, the Court must dismiss the case. Id.

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Defendants removed this action on September 27, 2012. (Notice of Removal of Action
under 28 U.S.C. Section 1441(b) (“Notice of Removal”) (Dkt. No. 1).) Defendants assert that

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Plaintiff’s “state court action involve[s] several claims in which [sic] is based solely in Federal

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Law.” (Notice of Removal at 2.) Specifically, Defendants contend that Plaintiff’s claims are

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purportedly based on the Fair Debt Collection Practices Act (“FDCPA”) and the Truth in Lending

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Act (“TILA”), and relate to a Consent Order issued by the Board of Governors of the Federal

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Reserve System Washington, D.C. as well as the Federal Deposit Insurance Corporation

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Washington, D.C. (Id.) Having reviewed the Notice of Removal and the state court complaint in

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this action (Dkt. No. 1), the Court REMANDS this action because it is without subject matter

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jurisdiction.

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Pursuant to 28 U.S.C. section 1441(a), “any civil action brought in a State court of which
the district courts of the United States have original jurisdiction, may be removed by the defendant

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United States District Court
Northern District of California

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or the defendants, to the district court of the United States for the district and division embracing

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the place where such action is pending.” 28 U.S.C. § 1441(a). Under 28 U.S.C. section 1331, a

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district court has original jurisdiction over “all civil actions arising under the Constitution, laws, or

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treaties of the United States.” 28 U.S.C. § 1331. The burden of establishing federal jurisdiction is

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on the party seeking removal, and courts strictly construe the removal statute against removal

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jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566–67 (9th Cir. 1992) (internal citations omitted).

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Accordingly, “federal jurisdiction must be rejected if there is any doubt as to the right of removal in

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the first instance.” Id. at 566. A district court must remand the case to state court if it appears at

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any time before final judgment that the district court lacks subject matter jurisdiction. 28 U.S.C. §

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1447(c).

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Defendants’ characterizations of the complaint as raising claims under FDCPA and TILA

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do not create a federal question. A claim “arises under” federal law if, based on the “well-pleaded

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complaint rule,” the plaintiff alleges a federal claim for relief. Vaden v. Discovery Bank, 556 U.S.

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49, 60 (2009). Defenses and counterclaims asserting a federal question do not satisfy this

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requirement. Id.; Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987) (“[I]t is now settled law

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that a case may not be removed to federal court on the basis of a federal defense.”). The federal

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question must be presented by the plaintiff’s complaint as it stands at the time of removal. The

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record indicates that Plaintiff’s state court complaint presents one state law claim for unlawful

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detainer under California Code of Civil Procedure section 1161a. The complaint is clearly

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captioned as a “Complaint for Unlawful Detainer” and does not allege any federal claims

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whatsoever. Defendants’ allegations in the Notice of Removal cannot provide this Court with

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federal question jurisdiction.
Moreover, there is no diversity jurisdiction in this matter. The complaint indicates that the

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amount demanded is less than $10,000. As such, removal to federal court cannot be based on

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diversity jurisdiction. 28 U.S.C §§ 1441(b) & 1332(a).
Federal courts can only adjudicate cases which the Constitution or Congress authorize them

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to adjudicate: those cases involving diversity of citizenship (where the parties are from diverse
states), or a federal question, or those cases to which the United States is a party. See, e.g.,

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United States District Court
Northern District of California

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Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375, 377 (1994). Federal courts

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are presumptively without jurisdiction over civil cases and the burden of establishing the contrary

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rests upon the party asserting jurisdiction. Id. Having failed to identify a basis for federal question

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jurisdiction, the Court must remand this action.
Accordingly, Defendants’ Applications to Proceed in Forma Pauperis are DENIED and this

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action is hereby REMANDED to the Superior Court of the State of California, County of Alameda.

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This Order terminates Dkt. Nos. 3 & 4. The Clerk of this Court is further ordered to forward

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certified copies of this Order and all docket entries to the Clerk of the Alameda County Superior

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Court.

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IT IS SO ORDERED.

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Dated: November 26, 2012

_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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