D& I Investment, Inc v. Luciw

Filing 13

ORDER That Case Be Reassigned to a District Judge; REPORT AND RECOMMENDATIONS re 1 Notice of Removal and 10 MOTION to Remand. 1/31/2012 motion hearing vacated. Report and recommendation that plaintiff's motion be granted and that this action be remanded to state court. Objections due by 2/9/2012. Signed by Magistrate Judge Howard R. Lloyd on 1/23/2012. (hrllc2, COURT STAFF) (Filed on 1/23/2012)

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*E-FILED: January 23, 2012*

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NOT FOR CITATION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. C11-06132 HRL

D & I INVESTMENT, INC.,

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ORDER THAT CASE BE REASSIGNED
TO A DISTRICT JUDGE

Plaintiff,
v.

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REPORT AND RECOMMENDATION RE
MOTION TO REMAND TO STATE
COURT

ROSIE LUCIW; DOES 1-20,
Defendants.
/

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In December 2011, defendant Rosie Luciw removed this unlawful detainer case from

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Santa Clara County Superior Court. Plaintiff D&I Investment, Inc. moves to remand.

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Defendant did not file an opposition to the motion. This court finds the matter suitable for

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determination without oral argument, and the January 31, 2012 hearing is vacated. CIV. L.R. 7-

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1(b). For the reasons stated below, the undersigned recommends that plaintiff’s motion be

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granted and that this action be remanded to the state court.

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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 it clearly appears on the face of

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the notice and any exhibits annexed thereto that removal should not be permitted, the court shall

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make an order for summary remand.” 28 U.S.C. § 1446(c)(4) (emphasis added). These

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removal statutes are strictly construed against removal and place the burden on the defendant to

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demonstrate that removal was proper. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241,

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1244 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).
Here, plaintiff points out that removal was untimely under 28 U.S.C. § 1446(b) because

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it was made more than 30 days after defendant was served with the complaint and summons.

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See Hoffman Decl. ¶4.

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Even if removal were timely, however, defendant has failed to show that removal is

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proper on account of any federal substantive law. The Notice of Removal asserts that plaintiff

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violated federal law in pursuing its unlawful detainer action. Federal courts have original

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

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States.” 28 U.S.C. § 1331. A claim “arises under” federal law if, based on the “well-pleaded
complaint rule,” the plaintiff alleges a federal claim for relief. Vaden v. Discovery Bank, 129 S.

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For the Northern District of California

United States District Court

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Ct. 1262, 1272 (2009). Defenses and counterclaims asserting a federal question do not satisfy

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this requirement. Id. The record indicates that plaintiff’s complaint presents claims arising

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only under state law and does not allege any federal claims whatsoever. Defendant’s

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allegations in a removal notice or in a response to plaintiff’s complaint cannot provide this court

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with federal question jurisdiction.

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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, Luciw cannot remove this action to federal court

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under diversity jurisdiction. 28 U.S.C. § 1441(b) (stating that an action is removable for

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diversity “only if none of the parties in interest properly joined and served as defendants is a

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citizen of the State in which such action is brought”); Spencer v. U.S. Dist. Ct., 393 F.3d 867,

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870 (9th Cir. 2004) (“It is thus clear that the presence of a local defendant at the time removal is

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sought bars removal.”).

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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 grant plaintiff’s motion and remand the

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

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days after being served.

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SO ORDERED.

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Dated: January 23, 2012
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-06132-HRL Notice has been electronically mailed to:

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Kirkman Jan Hoffman

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5:11-cv-06132-HRL Notice sent by U.S. Mail to:

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Rosie Luciw
4040 Hidden Valley Lane
San Jose, CA 95127

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[e-mail]

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For the Northern District of California

United States District Court

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