Orser v. Mosier et al

Filing 5

ORDER That Case Be Reassigned to a District Judge; REPORT AND RECOMMENDATIONS re 1 Notice of Removal and 3 MOTION to Remand filed by Richard w Orser. 3/6/2012 motion hearing vacated. Objections due by 3/5/2012. Signed by Magistrate Judge Howard R. Lloyd on 2/15/2012. (hrllc2, COURT STAFF) (Filed on 2/15/2012)

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*E-FILED: February 15, 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NOT FOR CITATION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. C12-00328 HRL

RICHARD W. ORSER, Trustee of the Richard
W. Orser Trust Dated February 14, 1991,

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ORDER THAT CASE BE REASSIGNED
TO A DISTRICT JUDGE

Plaintiff,
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v.
REPORT AND RECOMMENDATION RE
MOTION TO REMAND TO STATE
COURT

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MARION E. MOSIER, DAVID J. MOSIER,
and DOES 1 TO 25, inclusive,

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Defendants.
/

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On January 20, 2012, defendant David J. Mosier removed this unlawful detainer case

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from the Santa Cruz County Superior Court. Plaintiff Richard W. Orser, Trustee of the Richard

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W. Orser Trust Dated February 14, 1991, moves to remand. Defendant did not file an

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opposition to the motion, and the time for filing any opposition or response has passed. This

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court finds the matter suitable for determination without oral argument, and the March 6, 2012

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hearing is vacated. CIV. L.R. 7-1(b). For the reasons stated below, the undersigned

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recommends that plaintiff’s motion be granted and that this action be remanded to the state

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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)).

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Additionally, the court is under a continuing duty to examine whether it lacks subject matter

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jurisdiction. See FED. R. CIV. P. 12(h).

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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 Mot. Exs. A-C.
Even if removal were timely, however, defendant has failed to show that removal is

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For the Northern District of California

United States District Court

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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 foreclosing on the property. Federal courts have original jurisdiction

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over civil actions “arising under the Constitution, laws, or treaties of the United States.” 28

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U.S.C. § 1331. A claim “arises under” federal law if, based on the “well-pleaded complaint

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rule,” the plaintiff alleges a federal claim for relief. Vaden v. Discovery Bank, 129 S. Ct. 1262,

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1272 (2009). Defenses and counterclaims asserting a federal question do not satisfy this

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

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under state law and does not allege any federal claims whatsoever. Defendant’s allegations in a

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

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question jurisdiction.

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Moreover, as a California defendant, Mosier 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 Cruz 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: February 15, 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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5:12-cv-00328-HRL Notice has been electronically mailed to:

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Reid Paul Schantz

[e-mail]

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5:12-cv-00328-HRL Notice sent by U.S. Mail to:

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David J. Mosier
14231 Longridge Road
Los Gatos, CA 95033

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For the Northern District of California

United States District Court

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