Wells Fargo Bank, N.A. et al v. Dizon

Filing 4

ORDER That Case Be Reassigned to a District Judge; REPORT AND RECOMMENDATION re 1 Notice of Removal and 2 MOTION for Leave to Proceed in forma pauperis. Objections due by 12/23/2011. Signed by Magistrate Judge Howard R. Lloyd on 12/6/2011. (hrllc2, COURT STAFF) (Filed on 12/6/2011)

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*E-FILED 12-06-2011*

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NOT FOR CITATION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. C11-05770 HRL

WELLS FARGO BANK, N.A.,

ORDER THAT CASE BE REASSIGNED
TO A DISTRICT JUDGE

Plaintiff,
v.

REPORT AND RECOMMENDATION
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LILIA E. DIZON and DOES 1-5,
Defendants.
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Pro se defendant Lilia E. Dizon removed this case from Santa Clara County Superior

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Court and requested leave to proceed in forma pauperis (IFP). For the reasons stated below, the

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undersigned recommends that defendant’s IFP application be denied as moot, and that this

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action be summarily remanded to the state court.

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The record presented indicates that on May 18, 2011, Wells Fargo Bank, N.A. (Wells

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Fargo) filed the instant action for forcible detainer/forcible entry. According to the complaint,

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Wells Fargo previously filed an action for unlawful detainer against Dizon and obtained a

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default judgment for possession of the property. The complaint further alleges that, without

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plaintiff’s consent, defendant then forcibly took possession of the premises and refuses to leave.

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A court may authorize the commencement of a civil action in forma pauperis if the court

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is satisfied that the applicant cannot pay the requisite filing fee. 28 U.S.C § 1915(a)(1).

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However, a court may dismiss a case filed without the payment of the filing fee whenever it

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determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief

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may be granted; or (iii) seeks monetary relief against a defendant who is immune from such

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relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). Additionally, “[i]f the court determines at any time

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that it lacks subject-matter jurisdiction, the court must dismiss the action.” FED. R. CIV. P.

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12(h)(3).

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

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For the Northern District of California

United States District Court

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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 the foreclosure of her home and the prior unlawful detainer

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action were conducted in violation of federal law and her constitutional rights. Federal courts

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have original jurisdiction over civil actions “arising under the Constitution, laws, or treaties of

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the United States.” 28 U.S.C. § 1331. A claim “arises under” federal law if, based on the

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“well-pleaded complaint rule,” the plaintiff alleges a federal claim for relief. Vaden v.

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Discovery Bank, 129 S. Ct. 1262, 1272 (2009). Defenses and counterclaims asserting a federal

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question do not satisfy this requirement. Id. The record indicates that plaintiff’s complaint

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presents claims arising only under state law and does not allege any federal claims whatsoever.

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Defendant’s allegations in a removal notice or in a response to plaintiff’s complaint cannot

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provide this court with federal question jurisdiction. Accordingly, defendant has failed to show

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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, Dizon does not have the right to remove this action
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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 deny the IFP application as moot and

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summarily remand the case to Santa Clara County Superior Court. Pursuant to Federal Rule of

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Civil Procedure 72(b), any party may serve and file objections to this Report and

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Recommendation within fourteen days after being served.

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For the Northern District of California

United States District Court

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SO ORDERED.
Dated: December 6, 2011
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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5:11-cv-05770-HRL Notice has been electronically mailed to:

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Eric Gene Fernandez [e-mail], [e-mail],
[e-mail], [e-mail], [e-mail]

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5:11-cv-05770-HRL Notice sent by U.S. Mail to:

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Lilia Dizon
c/o Non-Domestic Mail
1338 Flickinger Avenue
San Jose, CA 95131

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Lilia Dizon
2530 Berryessa Road #515
San Jose, CA 95132

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For the Northern District of California

United States District Court

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