PHH Mortgage Corporation v. Landmark Real Estate Investments, Inc. et al

Filing 228

**UNSIGNED ORDER FILED IN ERROR, PLEASE DISREGARD** ORDER BY JUDGE JEREMY FOGEL DENYING 177 MOTION TO REMAND. (jflc2, COURT STAFF) (Filed on 9/30/2008) Modified on 9/30/2008 (jflc2, COURT STAFF).

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**E-filed 9/30/08**

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

PHH MORTGAGE CORP., Plaintiff, v.

Case Number C 07-0369 JF (HRL) ORDER1 DENYING MOTION TO REMAND [re: docket no. 177]

LANDMARK REAL ESTATE INVESTMENTS, INC., et al. Defendants.

I. BACKGROUND Cross-defendants PFS Mortgage Loans ("PFS") and James Molinaro II ("Molinaro") move to remand this case to the Santa Clara Superior Court. For the reasons stated below, the motion will be denied. Invoking the Court's diversity jurisdiction, Plaintiff PHH Mortgage Corporation filed its original complaint in this Court against Defendants Landmark Real Estate Investments and Hao Nguyen. Defendants filed state law cross-claims against approximately forty cross-defendants, including PFS and Molinaro. On February 4, 2008, Plaintiff reached a partial settlement of its

This disposition is not designated for publication in the official reports.

C a s e No. C 07-0369 JF (HRL) O R D E R DENYING MOTION TO REMAND ( JF E X 1 )

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claims against each of the Defendants, who in turn reached partial settlement with many of the cross-defendants.2 PFS and Molinaro thereafter filed the instant motion to remand. No opposition was filed. II. DISCUSSION In light of the apparent disposition of Plaintiff's claims against Defendants, Movants argue that this Court lacks proper subject matter jurisdiction because there is no diversity of citizenship among the remaining parties. Remand is the process by which a federal court returns a case to the state court from which it was removed. See 28 U.S.C. § 1447 (providing for the procedure after removal "[i]n any case removed from a State court"); see e.g., Price v. PSA, Inc., 829 F.2d 871, 876 (9th Cir. 1987) ("the rule in this circuit is that the district court has discretion to remand the rest of the action to the state court from which it is removed"). A district court may not remand a case to state court when the case was not filed there in the first place, and a district court may transfer a civil action only to another "district or division where it might have been brought." 28 U.S.C. § 1404(a) (transfers "[f]or the convenience of parties and witnesses"). This provision does not permit transfer from a federal court to a state court. Pope v. Atlantic Coast Line R. Co., 345 U.S. 379, 384 (1953). Because Plaintiff filed its original complaint in this Court, the instant case cannot be remanded or transferred to the state court. If Movants wish to assert a challenge to this Court's subject matter jurisdiction, they may seek dismissal pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. The Court notes, however, that "[t]he general rule in diversity cases is that if the jurisdictional requisites are present when the action begins, subsequent events will not ordinarily defeat the district court's jurisdiction." Hill v. Rolleri, 615 F.2d 886, 889 (9th Cir. 1980) (third-partly claim survived settlement of the main action upon which diversity jurisdiction depended).

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The status of the settlement agreements is uncertain. 2

C a s e No. C 07-0369 JF (HRL) O R D E R DENYING MOTION TO REMAND ( JF E X 1 )

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III. CONCLUSION Good cause therefor appearing, IT IS HEREBY ORDERED that the motion to remand is DENIED.

JEREMY FOGEL United States District Judge

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This Order has been served upon the following persons: Marc Alan Eisenhart Suzanne M Hankins Patricia Lynn McClaran Sunny K. Hur William C. Dresser [e-mail] [e-mail] [e-mail] [e-mail] [e-mail]

Richard Augustus Swenson [e-mail] Jeffrey Paul Widman Timothy D. Widman Robin D. Dakan Roger Dean Wintle Matthew J. Durket Ismael D. Perez Ann Anh Phuong Nguyen Shawn Robert Parr Carlos Garcia 2301 Chrysler Drive Modesto, CA 95350 209-544-8641 PRO SE Ramon Castillo 2616 Floyd Avenue Modesto, CA 95355 209-551-3652 PRO SE [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail]

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C a s e No. C 07-0369 JF (HRL) O R D E R DENYING MOTION TO REMAND ( JF E X 1 )