Bank of New York Mellon v. Carollo

Filing 8

ORDER REMANDING CASE., Motions terminated: (3 in 4:13-cv-00137-DMR) MOTION for Leave to Proceed in forma pauperis filed by Sharon Carollo, (2 in 4:13-cv-00135-DMR) MOTION for Leave to Proceed in forma pauperis filed by Sharon Carollo., ORDER DISMISSING CASE. Signed by Magistrate Judge Donna M. Ryu on 1/25/2013. (dmrlc2, COURT STAFF) (Filed on 1/25/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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THE BANK OF NEW YORK MELLON,

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Plaintiff(s),

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v.

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SHARON CAROLLO,

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No. C-13-135 DMR
No. C-13-137 DMR
ORDER DENYING IFP APPLICATIONS
AND REMANDING CASES TO
CONTRA COSTA COUNTY SUPERIOR
COURT

Defendant(s).
___________________________________/

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Defendant Sharon Carollo removed these cases pursuant to 28 U.S.C. § 1331 from Contra

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Costa County Superior Court, where they were pending as complaints for unlawful detainer against

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her. The Notices of Removal state one ground for removal: that the respective complaints present

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federal questions such that the cases could have originally been filed in this Court. (Notices of

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Removal ¶¶ 25, 29, 32.) Defendant has also filed applications to proceed in forma pauperis ("IFP").

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When a notice of removal is filed, the court must examine it "promptly," and, "[i]f it clearly

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appears on the face of the notice and any exhibits annexed thereto that removal should not be

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permitted, the court shall make an order for summary remand." 28 U.S.C. § 1446(c)(4). The parties

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filed consents to this court’s jurisdiction pursuant to 28 U.S.C. § 636(c). The court therefore may

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enter a final disposition in the case. See 28 U.S.C. § 636(c)(1); Fed. R. Civ. P. 72(b); N.D. Cal. Civ.

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L.R. 72-1. For the reasons below, the court denies the IFP applications and orders that the cases be

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remanded to Contra Costa County Superior Court.

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I. IFP Applications
Having evaluated Defendant’s financial affidavits, the court finds that she has not satisfied

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the economic eligibility requirement of 28 U.S.C. § 1915(a) and therefore denies the IFP

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applications. The court next turns to the issue of subject matter jurisdiction.

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II. Federal Question Jurisdiction
Federal courts are courts of limited jurisdiction, and a "federal court is presumed to lack

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jurisdiction in a particular case unless the contrary affirmatively appears." Stock W., Inc. v.

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Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989) (citations omitted). "[T]he presence or

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absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which
provides that federal jurisdiction exists only when a federal question is presented on the face of the

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For the Northern District of California

United States District Court

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plaintiff's properly pleaded complaint." Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998)

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(quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)). That rule applies equally to

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evaluating the existence of federal questions in cases brought initially in federal court and in

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removed cases. See Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 830 n.2

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(2002). Relevant for purposes here, a federal question exists only when it is presented by what is or

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should have been alleged in the complaint. Id. at 830. The implication of a federal question through

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issues raised by an answer or counterclaim does not suffice to establish federal question jurisdiction.

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Id. at 831.

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According to Defendant’s Notices of Removal, federal questions arise because these cases

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involve the Fair Housing Act, 42 U.S.C. § 3601 et seq., the Protecting Tenants at Foreclosure Act of

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2009, 12 U.S.C. § 5201 et seq., and the Fair Debt Collections Act, 15 U.S.C. § 1692 et seq. (Notices

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of Removal ¶¶ 25, 20, 32.) The complaints that Plaintiff filed in Contra Costa County Superior

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Court, however, simply allege state causes of action for unlawful detainer.1 (Compls.) Whatever

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Defendant intends to argue in response to these allegations does not give rise to removal jurisdiction.

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Calvena Mgmt., Inc. v. White, No. 12-5763 NC, 2012 WL 6218199, at *2 (N.D. Cal. Dec. 13, 2012)

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The facts in these cases are closely tied to those in Carollo v. Vericrest Financial, Inc., No.
11-4767 YGR, 2012 WL 4343816 (N.D. Cal. Sept. 21, 2012) (dismissing Plaintiff Carollo’s
foreclosure-related claims concerning the same real property against, inter alia, Defendant Bank of New
York Mellon on basis of res judicata).

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(holding that affirmative defenses based upon Protecting Tenants at Foreclosure Act of 2009 do not

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confer federal jurisdiction upon state unlawful detainer claim); Fed. Home Loan Mortg. Corp. v.

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Pinzon, No. 12-3450 NC, 012 WL 3527232, at *2 (N.D. Cal. July 12, 2012) (holding that

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affirmative defenses based upon Fair Housing Act do not confer federal jurisdiction upon state

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unlawful detainer claim); Fed. Nat’l Mortg. Ass'n v. Gonzalez, No. 11-2385, 2011 WL 4101317, at

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*1 (E.D. Cal. Sept. 13, 2011) (holding that affirmative defenses based upon Fair Debt Collections

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Act do not confer federal jurisdiction upon state unlawful detainer claim).

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III. Conclusion

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For the reasons above, the court denies Defendant’s IFP applications and remands both of
these cases to the Contra Costa County Superior Court.

S

R NIA

United States Magistrate Judge

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. Ryu

onna M
Judge D
DONNA M. RYU

FO

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Dated: January 25, 2013

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DERED

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UNIT
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IT IS SO ORDERED.

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For the Northern District of California

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United States District Court

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