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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** E-filed January 12, 2012 **

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

NOT FOR CITATION

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United States District Court

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SAN JOSE DIVISION

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BAY VALLEY PROFESSIONAL
CENTER, LLC,

No. C11-06253 HRL

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ORDER THAT CASE BE
REASSIGNED TO A DISTRICT
COURT JUDGE

Plaintiff,
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v.
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REPORT AND RECOMMENDATION

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JONATHAN ORCINE; ABRAHAM B.
ORCINE; et al.,

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Defendants.
____________________________________/

[Re: Docket No. 1]

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INTRODUCTION
On August 17, 2011, defendants Jonathan and Abraham Orcine (collectively, “Defendants”),

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proceeding pro se, removed this case from Santa Clara County Superior Court. Docket No. 1

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(“Notice of Removal”). Plaintiff Bay Valley Professional Center (“Bay Valley”) moves to remand

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and seeks immediate relief by requesting that the motion be heard one week after it was filed. Dkt.

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Nos. 4, 5. Because none of the parties have consented to the undersigned’s jurisdiction, this court is

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unable to provide the dispositive relief sought. For the reasons stated below, the undersigned

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DENIES the Motion to Shorten Time, ORDERS that this case be reassigned to a district judge, and

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RECOMMENDS that this action be summarily remanded to state court.

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DISCUSSION

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Bay Valley filed this unlawful detainer action against defendants on October 18, 2011 in

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Santa Clara County Superior Court. Notice of Removal, Exh. A (“Complaint”). According to the

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complaint, Bay Valley acquired the subject property, a San Jose residence, through a foreclosure

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trustee’s sale on September 12, 2011, in accordance with California Civil Code section 2924. Id. at ¶

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4. On September 16, Bay Valley served defendants with a three-day Notice to Quit. Id. at ¶ 6.

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Defendants did not respond to the Notice, nor did they vacate the property. Id. at ¶ 7.

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

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matter jurisdiction over the complaint. 28 U.S.C. § 1441. Removal jurisdiction can be based on

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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

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U.S. 386, 392 (1987). If, after a court’s prompt review of a notice of removal, “it clearly appears on

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the face of the notice and any exhibits annexed thereto that removal should not be permitted, the

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court shall 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, 1244

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(9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).

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Here, defendants assert that removal is proper based on federal question jurisdiction. See

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Notice of Removal ¶ 6. Federal courts have original jurisdiction over civil actions “arising under the

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Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A claim “arises under”

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federal law if, based on the “well-pleaded complaint rule,” the plaintiff alleges a federal cause of

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action. Vaden v. Discovery Bank, 129 S. Ct. 1262, 1272 (2009). Alternatively, the complaint may

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establish that the plaintiff’s right to relief “necessarily depends on resolution of a substantial

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question of federal law.” Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage

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Leasehold & Easement, 524 F.3d 1090, 1100 (9th Cir. 2008) (quoting Franchise Tax Bd. v. Constr.

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Laborers Vacation Trust, 463 U.S. 1, 27–28 (1983). Defenses and counterclaims asserting a federal

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question do not satisfy this requirement. Discovery Bank, 129 S. Ct. at 1272.

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Defendants assert that Bay Valley’s unlawful detainer claim fails because it violated the

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federal Protecting Tenants at Foreclosure Act, 12 U.S.C. § 5220. Notice of Removal at ¶¶ 6-9.

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However, the defendants raised this alleged violation in a demurrer, a responsive pleading, and – as

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noted above – only the complaint can provide the basis for federal question jurisdiction. Discovery

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Bank, 129 S. Ct. at 1272. Bay Valley’s complaint alleges only a cause of action for unlawful

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detainer under California law; it does not allege any federal claims whatsoever. See Complaint.

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Moreover, resolving Bay Valley’s unlawful detainer claim does not depend on resolution of any

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substantial issues of federal law. Accordingly, the defendants have failed to show that this action

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arises under federal law.

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Neither is there diversity jurisdiction over this action. Federal subject-matter jurisdiction

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based on diversity requires complete diversity of citizenship and an amount in controversy in excess

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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

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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

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

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the Clerk of the Court to reassign this case to a District Court judge. Bay Valley’s Motion to Shorten

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Time is DENIED and the hearing on its Motion to Remand is VACATED. The undersigned further

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RECOMMENDS that the newly assigned judge summarily remand the case to Santa Clara County

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Superior Court. Pursuant to Federal Rule of Civil Procedure 72(b), any party may serve and file

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objections to this Report and Recommendation within fourteen days after being served.

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Additionally, the “forum defendant rule” ordinarily imposes a limitation on actions

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removed pursuant to diversity jurisdiction: “such action[s] shall be removable only if none of the

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parties in interest properly joined and served as defendants is a citizen of the State in which such

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action is brought.” 28 U.S.C. § 1441(b); see Spencer v. U.S. Dist. Ct. for the Northern Dist. of Cal.,

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393 F.3d 867, 870 (9th Cir. 2004). However, the Ninth Circuit has held this rule to be procedural

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and a waivable defect in the removal process, and a court acting sua sponte may not base its

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decision to remand solely upon such a defect. Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 935-

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36 (9th Cir. 2006).

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IT IS SO ORDERED.
Dated: January 12, 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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C11-06253 HRL Notice will be electronically mailed to:

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Todd Bennett Rothbard
Richard Allen McBride

[e-mail]

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Notice will be mailed to:
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Jonathan Orcine
1572 Hillsdale Avenue
San Jose, CA 95118

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Abraham B Orcine
1572 Hillsdale Avenue
San Jose, CA 95118

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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

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