The Bank of New York Mellon v. Germanelo

Filing 16

Order by Hon. Lucy H. Koh granting 9 Motion to Remand.(lhklc3, COURT STAFF) (Filed on 4/30/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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THE BANK OF NEW YORK MELLON FKA )
THE BANK OF NEW YORK AS TRUSTEE )
FOR THE CERTIFICATEHOLDERS OF
)
CWALT, INC., ALTERNATIVE LOAN
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TRUST 2005.51 MORTGAGE PASS)
THROUGH CERTIFICATES, SERIES 2005-51, )
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Plaintiffs,
)
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v.
)
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LEO GERMANELO and DOES I through X,
)
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Defendants.
)
)

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Case No.: 12-cv-01163-LHK
ORDER REMANDING CASE

On March 8, 2012, Defendant Leo Germanelo (“Defendant”) removed this unlawful

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detainer action from the Superior Court for the County of Monterey to federal court, asserting

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federal question jurisdiction. See ECF No. 1 (“Notice of Removal”) at 2. The case was reassigned

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to the undersigned judge on March 14, 2012. ECF No. 6. Before the Court is Plaintiff’s Motion to

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Remand for lack of jurisdiction, which Defendant has not opposed. See ECF Nos. 9 (“Mot.”), 15

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(“Reply”). The Court finds the matter appropriate for determination without oral argument and

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therefore VACATES the hearing set for August 9, 2012. See Civil L.R. 7-1(b). Having reviewed

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Plaintiff’s submissions and the relevant law, the Court concludes that it lacks jurisdiction over this

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matter, and therefore GRANTS the Motion to Remand.

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I.

BACKGROUND
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Case No.: 12-CV-01163-LHK
ORDER REMANDING CASE

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The instant dispute arises from a non-judicial foreclosure sale of real property located at

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3229 Susan Avenue, Marina, California 93933 (the “Property”). Notice of Removal, Ex. A

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(complaint) at 2. In seeking to recover possession of the Property, Plaintiff The Bank of New York

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Mellon fka The Bank of New York as Trustee for the Certificateholders of Cwalt, Inc., Alternative

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Loan Trust 2005.51, Mortgage Pass-Through Certificates, Series 2005-51 (“Plaintiff”), filed a

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complaint in the Superior Court for the County of Monterey alleging a single cause of action,

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unlawful detainer, pursuant to California Code of Civil Procedure § 1161a. See Notice of

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Removal, Ex. A at 1. Defendant filed a demurrer to the complaint alleging defective notice, which

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the Superior Court overruled. See Removal Notice at 3 & Ex. B (demurrer). Defendant

United States District Court
For the Northern District of California

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subsequently removed this action to federal court.
II.

LEGAL STANDARDS AND DISCUSSION
There are two bases for federal subject matter jurisdiction: (1) federal question jurisdiction

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under 28 U.S.C. § 1331, and (2) diversity jurisdiction under 28 U.S.C. § 1332. A suit may be

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removed from state court to federal court only if the federal court would have had subject matter

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jurisdiction over the case. 28 U.S.C. § 1441(a). If it appears at any time before final judgment that

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the federal court lacks subject matter jurisdiction, the federal court must remand the action to state

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court. 28 U.S.C. § 1447(c). The party seeking removal bears the burden of establishing federal

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jurisdiction. Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir.

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2009). “The removal statute is strictly construed, and any doubt about the right of removal requires

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resolution in favor of remand.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th

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

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A. Federal Question Jurisdiction
Under 28 U.S.C. § 1331, federal courts have original jurisdiction over civil actions “arising

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under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Federal

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jurisdiction “is determined (and must exist) as of the time the complaint is filed and removal is

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effected.” Strotek Corp. v. Air Transport Ass’n of Am., 300 F.3d 1129, 1133 (9th Cir. 2002).

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Removal pursuant to § 1331 is governed by the “well-pleaded complaint rule,” which provides that

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Case No.: 12-CV-01163-LHK
ORDER REMANDING CASE

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federal question jurisdiction exists only when “a federal question is presented on the face of

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plaintiff’s properly pleaded complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).

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The state court complaint attached to the Notice of Removal discloses no federal statutory

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or constitutional question. Plaintiff asserts only a single cause of action for unlawful detainer

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pursuant to California Code of Civil Procedure § 1161(a)(b)(3). ECF No. 1, Ex. A. An unlawful

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detainer action does not arise under federal law but rather is purely a creature of California law.

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See Fed. Home Loan Mortg. Corp. v. Viray, 2012 WL 1231838, at *1 (N.D. Cal. Apr. 12, 2012);

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Wells Fargo Bank v. Lapeen, 2011 WL 2194117, at *3 (N.D. Cal. June 6, 2011); Litton Loan

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Servicing, L.P. v. Villegas, 2011 WL 204322, at *2 (N.D. Cal. Jan. 21, 2011).

United States District Court
For the Northern District of California

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Defendant’s Notice of Removal asserts that federal question jurisdiction exists because

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Defendant filed a demurrer in state court based on Plaintiff’s alleged noncompliance with the

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notice requirements of the Protecting Tenants at Foreclosure Act, 12 U.S.C. § 5220, and therefore

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resolution of the case “depend[s] on the determination of Defendants’ rights and Plaintiff’s duties

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under federal law.” ECF No. 1 at 3; see ECF No. 1, Ex. B (demurrer). However, it is well-settled

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that “a case may not be removed to federal court on the basis of a federal defense . . . even if the

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defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal

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defense is the only question truly at issue.” Caterpillar, 482 U.S. at 393. Nor can a counterclaim

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“serve as the basis for [§ 1331] ‘arising under’ jurisdiction.” Holmes Grp., Inc. v. Vornado Air

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Circulation Sys., Inc., 535 U.S. 826, 830-32 (2002). Thus, to the extent Defendant’s defenses or

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counterclaims to the unlawful detainer action are based on alleged violations of federal law, those

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allegations do not provide a basis for federal jurisdiction. 1 Because no federal question is

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presented on the face of Plaintiff’s properly pleaded complaint, this Court lacks federal question

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jurisdiction. See Caterpillar, 482 U.S. at 392.

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B. Diversity Jurisdiction
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Although irrelevant to the Court’s jurisdictional analysis, the Court further notes that even if a
defense or counterclaim could give rise to federal question – which it cannot – the PTFA does not
create a private right of action or an independent basis for federal subject matter jurisdiction. See
Aurora Loan Servs. LLC v. Torres, No. 11-cv-30611, 2011 WL 4551458, at *1 (N.D. Cal. Sept. 30,
2011); Nativi v. Deutsch Bank Nat’l Trust Co., No. 09-06096 PVT, 2010 WL 2179885, at *2-4
(N.D. Cal. May 26, 2010).
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Case No.: 12-CV-01163-LHK
ORDER REMANDING CASE

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Even though Defendants’ Notice of Removal is based solely on an assertion of federal

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question jurisdiction, the Court briefly notes that diversity jurisdiction over this action is also

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lacking. Diversity jurisdiction exists only in suits between citizens of different states and “where

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the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.” 28

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U.S.C. § 1332(a). Here, Plaintiff’s Complaint seeks damages in an amount less than $10,000.

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Notice of Removal, Ex. A. Thus, because the amount in controversy is less than $75,000, diversity

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jurisdiction is also lacking. See 28 U.S.C. § 1332(a); St. Paul Mercury Indem. Co. v. Red Cab Co.,

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303 U.S. 283, 291 (1938) (the status of the case as disclosed by the plaintiff’s complaint is

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controlling for purposes of removal).

United States District Court
For the Northern District of California

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III.

CONCLUSION

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Defendant has not carried its burden of establishing federal jurisdiction. Accordingly,

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Plaintiff’s Motion to Remand this matter to the Superior Court for the County of Monterey is

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GRANTED. The Clerk shall close the file.

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IT IS SO ORDERED.

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Dated: April 30, 2012

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 12-CV-01163-LHK
ORDER REMANDING CASE