Bay Valley Professional Center, LLC v. Orcine et al

Filing 6

ORDER THAT CASE RE REASSIGNED TO A DISTRICT JUDGE. REPORT AND RECOMMENDATION. Because the parties have yet to consent to the undersigned's jurisdiction, the court orders this case reassigned to a district judge. Bay Valley's Motion to Shorten Time 5 is DENIED and the hearing on its Motion to Remand is VACATED. Signed by Magistrate Judge Howard R. Lloyd on 1/12/2012.(hrllc1, COURT STAFF) (Filed on 1/12/2012)

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1 ** E-filed January 12, 2012 ** 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 For the Northern District of California NOT FOR CITATION 8 United States District Court 7 SAN JOSE DIVISION 11 BAY VALLEY PROFESSIONAL CENTER, LLC, No. C11-06253 HRL 12 ORDER THAT CASE BE REASSIGNED TO A DISTRICT COURT JUDGE Plaintiff, 13 v. 14 REPORT AND RECOMMENDATION 15 JONATHAN ORCINE; ABRAHAM B. ORCINE; et al., 16 Defendants. ____________________________________/ [Re: Docket No. 1] 17 18 19 INTRODUCTION On August 17, 2011, defendants Jonathan and Abraham Orcine (collectively, “Defendants”), 20 proceeding pro se, removed this case from Santa Clara County Superior Court. Docket No. 1 21 (“Notice of Removal”). Plaintiff Bay Valley Professional Center (“Bay Valley”) moves to remand 22 and seeks immediate relief by requesting that the motion be heard one week after it was filed. Dkt. 23 Nos. 4, 5. Because none of the parties have consented to the undersigned’s jurisdiction, this court is 24 unable to provide the dispositive relief sought. For the reasons stated below, the undersigned 25 DENIES the Motion to Shorten Time, ORDERS that this case be reassigned to a district judge, and 26 RECOMMENDS that this action be summarily remanded to state court. 27 28 DISCUSSION 1 Bay Valley filed this unlawful detainer action against defendants on October 18, 2011 in 2 Santa Clara County Superior Court. Notice of Removal, Exh. A (“Complaint”). According to the 3 complaint, Bay Valley acquired the subject property, a San Jose residence, through a foreclosure 4 trustee’s sale on September 12, 2011, in accordance with California Civil Code section 2924. Id. at ¶ 5 4. On September 16, Bay Valley served defendants with a three-day Notice to Quit. Id. at ¶ 6. 6 Defendants did not respond to the Notice, nor did they vacate the property. Id. at ¶ 7. 7 Removal to federal court is proper where the federal court would have had original subject 8 matter jurisdiction over the complaint. 28 U.S.C. § 1441. Removal jurisdiction can be based on 9 diversity of citizenship or on the existence of a federal question. Caterpillar Inc. v. Williams, 482 For the Northern District of California United States District Court 10 U.S. 386, 392 (1987). If, after a court’s prompt review of a notice of removal, “it clearly appears on 11 the face of the notice and any exhibits annexed thereto that removal should not be permitted, the 12 court shall make an order for summary remand.” 28 U.S.C. § 1446(c)(4) (emphasis added). These 13 removal statutes are strictly construed against removal and place the burden on the defendant to 14 demonstrate that removal was proper. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 15 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). 16 Here, defendants assert that removal is proper based on federal question jurisdiction. See 17 Notice of Removal ¶ 6. Federal courts have original jurisdiction over civil actions “arising under the 18 Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A claim “arises under” 19 federal law if, based on the “well-pleaded complaint rule,” the plaintiff alleges a federal cause of 20 action. Vaden v. Discovery Bank, 129 S. Ct. 1262, 1272 (2009). Alternatively, the complaint may 21 establish that the plaintiff’s right to relief “necessarily depends on resolution of a substantial 22 question of federal law.” Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage 23 Leasehold & Easement, 524 F.3d 1090, 1100 (9th Cir. 2008) (quoting Franchise Tax Bd. v. Constr. 24 Laborers Vacation Trust, 463 U.S. 1, 27–28 (1983). Defenses and counterclaims asserting a federal 25 question do not satisfy this requirement. Discovery Bank, 129 S. Ct. at 1272. 26 Defendants assert that Bay Valley’s unlawful detainer claim fails because it violated the 27 federal Protecting Tenants at Foreclosure Act, 12 U.S.C. § 5220. Notice of Removal at ¶¶ 6-9. 28 However, the defendants raised this alleged violation in a demurrer, a responsive pleading, and – as 2 1 noted above – only the complaint can provide the basis for federal question jurisdiction. Discovery 2 Bank, 129 S. Ct. at 1272. Bay Valley’s complaint alleges only a cause of action for unlawful 3 detainer under California law; it does not allege any federal claims whatsoever. See Complaint. 4 Moreover, resolving Bay Valley’s unlawful detainer claim does not depend on resolution of any 5 substantial issues of federal law. Accordingly, the defendants have failed to show that this action 6 arises under federal law. 7 Neither is there diversity jurisdiction over this action. Federal subject-matter jurisdiction 8 based on diversity requires complete diversity of citizenship and an amount in controversy in excess 9 of $75,000. 28 U.S.C. § 1332(a). 1 In this matter, all parties are citizens of California, and plaintiff’s For the Northern District of California United States District Court 10 11 12 complaint expressly states that the amount in controversy is less than $10,000. Complaint p. 1. Therefore, there is no basis for this court to exercise jurisdiction based either upon a federal question or diversity. CONCLUSION 13 14 Because the parties have yet to consent to the undersigned’s jurisdiction, this court ORDERS 15 the Clerk of the Court to reassign this case to a District Court judge. Bay Valley’s Motion to Shorten 16 Time is DENIED and the hearing on its Motion to Remand is VACATED. The undersigned further 17 RECOMMENDS that the newly assigned judge summarily remand the case to Santa Clara County 18 Superior Court. Pursuant to Federal Rule of Civil Procedure 72(b), any party may serve and file 19 objections to this Report and Recommendation within fourteen days after being served. 20 1 21 Additionally, the “forum defendant rule” ordinarily imposes a limitation on actions 22 removed pursuant to diversity jurisdiction: “such action[s] shall be removable only if none of the 23 parties in interest properly joined and served as defendants is a citizen of the State in which such 24 action is brought.” 28 U.S.C. § 1441(b); see Spencer v. U.S. Dist. Ct. for the Northern Dist. of Cal., 25 393 F.3d 867, 870 (9th Cir. 2004). However, the Ninth Circuit has held this rule to be procedural 26 and a waivable defect in the removal process, and a court acting sua sponte may not base its 27 decision to remand solely upon such a defect. Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 935- 28 36 (9th Cir. 2006). 3 1 2 3 IT IS SO ORDERED. Dated: January 12, 2012 HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 For the Northern District of California United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 1 C11-06253 HRL Notice will be electronically mailed to: 2 Todd Bennett Rothbard Richard Allen McBride 3 Notice will be mailed to: 4 5 Jonathan Orcine 1572 Hillsdale Avenue San Jose, CA 95118 6 7 Abraham B Orcine 1572 Hillsdale Avenue San Jose, CA 95118 8 9 Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court’s CM/ECF program. For the Northern District of California United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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