Wells Fargo Bank, N.A. v. Mendiola

Filing 5

ORDER That Case Be Reassigned to a District Judge; REPORT AND RECOMMENDATIONS re 1 Notice of Removal. Recommendation of summary remand. Objections due by 12/12/2011. Signed by Magistrate Judge Howard R. Lloyd on 11/23/2011. (hrllc2, COURT STAFF) (Filed on 11/23/2011)

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*E-FILED 11-23-2011*

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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For the Northern District of California

United States District Court

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No. C11-05584 HRL

WELLS FARGO BANK, N.A.,

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ORDER THAT CASE BE REASSIGNED
TO A DISTRICT JUDGE

Plaintiff,
v.

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REPORT AND RECOMMENDATION

MARY GRACE S. MENDIOLA; and DOES 1
to 10, inclusive,
Defendants.
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Pro se defendant Mary Grace Mendiola removed this unlawful detainer action from

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Santa Clara County Superior Court. For the reasons stated below, the undersigned recommends

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that this action be summarily remanded.

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Plaintiff Wells Fargo Bank, N.A. (Wells Fargo) filed this unlawful detainer action in

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July 2011. According to the complaint, plaintiff acquired the subject property through a

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foreclosure trustee’s sale in June 2011. (Complaint, ¶ 5). The complaint further alleges that on

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June 9, 2011, plaintiff served defendant with a notice to vacate, but defendant refused to deliver

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possession of the property. (Id. ¶¶ 7-8).

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Removal to federal court is proper where the federal court would have original subject

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matter jurisdiction over the complaint. 28 U.S.C. § 1441. If, after a court’s prompt review of a

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notice of removal “it clearly appears on the face of the notice and any exhibits annexed thereto

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that removal should not be permitted, the court shall make an order for summary remand.” 28

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U.S.C. § 1446(c)(4) (emphasis added). These removal statutes are strictly construed against

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removal and place the burden on the defendant to demonstrate that removal was proper.

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Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus v.

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Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).

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Defendant contends that removal is proper because “[t]he complaint presents federal

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questions.” (Notice of Removal at 2). Federal courts have original jurisdiction over civil

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actions “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. §

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1331. A claim “arises under” federal law if, based on the “well-pleaded complaint rule,” the

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plaintiff alleges a federal claim for relief. Vaden v. Discovery Bank, 129 S. Ct. 1262, 1272
(2009). Defenses and counterclaims asserting a federal question do not satisfy this requirement.

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For the Northern District of California

United States District Court

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Id.

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Here, the record indicates that plaintiff’s complaint states only a claim for unlawful

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detainer. It does not allege any federal claims whatsoever. (Notice of Removal Ex. A).

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Defendant argues that plaintiff’s unlawful detainer complaint violates federal law. (Notice of

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Removal at 2). However, defendant’s allegations in her removal notice or in a response to

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plaintiff’s complaint cannot provide this court with federal question jurisdiction. Accordingly,

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defendant has failed to show that removal is proper on account of any federal substantive law.

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Nor does this court have diversity jurisdiction over the matter. Defendant does not

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establish diversity of citizenship in her removal notice, and a review of the complaint shows

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that it specifies that the amount of claimed damages does not exceed $10,000.00. (Complaint at

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1). In any event, as a California defendant, Mendiola does not have the right to remove this

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action to federal court under diversity jurisdiction. 28 U.S.C. § 1441(b) (stating that an action is

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removable for diversity “only if none of the parties in interest properly joined and served as

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defendants is a citizen of the State in which such action is brought”).

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Because the parties have yet to consent to the undersigned’s jurisdiction, this court

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ORDERS the Clerk of the Court to reassign this case to a District Judge. The undersigned

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further RECOMMENDS that the newly assigned judge summarily remand the case to Santa

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Clara County Superior Court. Pursuant to Federal Rule of Civil Procedure 72(b), any party may
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serve and file objections to this Report and Recommendation within fourteen days after being

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served.

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SO ORDERED.
Dated: November 23, 2011
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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For the Northern District of California

United States District Court

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5:11-cv-05584-HRL Notice sent by U.S. Mail to:

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Kevin A. Harris
Harris, Rosales & Harris
351 St. Mary Street
Pleasanton, CA 94566

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Mary Grace Mendiola
3075 Remington Way
San Jose, CA 95148

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For the Northern District of California

United States District Court

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