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)

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1 2 *E-FILED: March 9, 2012* 3 4 5 6 NOT FOR CITATION 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 For the Northern District of California United States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 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

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