Deutsche Bank National Trust Company v. Honrade et al

Filing 3

ORDER That Case Be Reassigned to a District Judge; REPORT AND RECOMMENDATIONS re 1 Notice of Removal. Report and recommendation re remand to state court. Objections due by 3/26/2012. Signed by Magistrate Judge Howard R. Lloyd on 3/9/2012. (hrllc2, COURT STAFF) (Filed on 3/9/2012)

1
2

*E-FILED: March 9, 2012*

3
4
5
6
NOT FOR CITATION

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11
For the Northern District of California

United States District Court

7

No. C12-01146 HRL

DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE,

12

ORDER THAT CASE BE REASSIGNED
TO A DISTRICT JUDGE

Plaintiff,
13
14
15
16

v.
REPORT AND RECOMMENDATION RE
REMAND TO STATE COURT

BENJAMIN E. HONRADE, ANITA Q.
HONRADE; and DOES 1 through 100,
inclusive,
Defendants.
/

17
18

Pro se defendants Benjamin and Anita Honrade removed this unlawful detainer case

19

from the Santa Clara County Superior Court. For the reasons stated below, the undersigned

20

recommends that this action be summarily remanded to the state court.

21

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

22

matter jurisdiction over the complaint. 28 U.S.C. § 1441. “If it clearly appears on the face of

23

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

24

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

25

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

26

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

27

1244 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).

28

Defendants have failed to show that removal is proper based on any federal substantive

1

law. In their notice of removal, defendants assert that their federal constitutional rights have

2

been violated. Specifically, they seem to object to the entry of summary judgment against them

3

in state court. Federal courts have original jurisdiction over civil actions “arising under the

4

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

5

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

6

for relief. Vaden v. Discovery Bank, 129 S. Ct. 1262, 1272 (2009). Defenses and

7

counterclaims asserting a federal question do not satisfy this requirement. Id. The record

8

indicates that plaintiff’s complaint presents claims arising only under state law and does not

9

allege any federal claims whatsoever. Defendants’ allegations in a removal notice or in a

11
For the Northern District of California

United States District Court

10

response to plaintiff’s complaint cannot provide this court with federal question jurisdiction.
Defendants do not establish diversity jurisdiction. In any event, the complaint indicates

12

that the amount demanded does not exceed $10,000. Moreover, as California defendants, the

13

Honrades cannot remove this action to federal court under diversity jurisdiction. 28 U.S.C. §

14

1441(b) (stating that an action is removable for diversity “only if none of the parties in interest

15

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

16

brought”); Spencer v. U.S. Dist. Ct., 393 F.3d 867, 870 (9th Cir. 2004) (“It is thus clear that the

17

presence of a local defendant at the time removal is sought bars removal.”).

18

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

19

ORDERS the Clerk of the Court to reassign this case to a District Judge. The undersigned

20

further RECOMMENDS that the newly assigned judge grant plaintiff’s motion and remand the

21

case to Santa Clara County Superior Court. Pursuant to Federal Rule of Civil Procedure 72(b),

22

any party may serve and file objections to this Report and Recommendation within fourteen

23

days after being served.

24

SO ORDERED.

25
26

Dated: March 9, 2012
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

27
28
2

1

5:12-cv-01146-HRL Notice has been electronically mailed to:

2

Amy Elizabeth Starrett

3

5:12-cv-01146-HRL Notice sent by U.S. Mail to:

4

Benjamin E. Honrade
4126 Horizon Lane
San Jose, CA 95148

5
6
7

[e-mail]

Anita Q. Honrade
4126 Horizon Lane
San Jose, CA 95148

8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3