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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 THE BANK OF NEW YORK MELLON FKA ) THE BANK OF NEW YORK AS TRUSTEE ) FOR THE CERTIFICATEHOLDERS OF ) CWALT, INC., ALTERNATIVE LOAN ) TRUST 2005.51 MORTGAGE PASS) THROUGH CERTIFICATES, SERIES 2005-51, ) ) Plaintiffs, ) ) v. ) ) LEO GERMANELO and DOES I through X, ) ) Defendants. ) ) 19 Case No.: 12-cv-01163-LHK ORDER REMANDING CASE On March 8, 2012, Defendant Leo Germanelo (“Defendant”) removed this unlawful 20 detainer action from the Superior Court for the County of Monterey to federal court, asserting 21 federal question jurisdiction. See ECF No. 1 (“Notice of Removal”) at 2. The case was reassigned 22 to the undersigned judge on March 14, 2012. ECF No. 6. Before the Court is Plaintiff’s Motion to 23 Remand for lack of jurisdiction, which Defendant has not opposed. See ECF Nos. 9 (“Mot.”), 15 24 (“Reply”). The Court finds the matter appropriate for determination without oral argument and 25 therefore VACATES the hearing set for August 9, 2012. See Civil L.R. 7-1(b). Having reviewed 26 Plaintiff’s submissions and the relevant law, the Court concludes that it lacks jurisdiction over this 27 matter, and therefore GRANTS the Motion to Remand. 28 I. BACKGROUND 1 Case No.: 12-CV-01163-LHK ORDER REMANDING CASE 1 The instant dispute arises from a non-judicial foreclosure sale of real property located at 2 3229 Susan Avenue, Marina, California 93933 (the “Property”). Notice of Removal, Ex. A 3 (complaint) at 2. In seeking to recover possession of the Property, Plaintiff The Bank of New York 4 Mellon fka The Bank of New York as Trustee for the Certificateholders of Cwalt, Inc., Alternative 5 Loan Trust 2005.51, Mortgage Pass-Through Certificates, Series 2005-51 (“Plaintiff”), filed a 6 complaint in the Superior Court for the County of Monterey alleging a single cause of action, 7 unlawful detainer, pursuant to California Code of Civil Procedure § 1161a. See Notice of 8 Removal, Ex. A at 1. Defendant filed a demurrer to the complaint alleging defective notice, which 9 the Superior Court overruled. See Removal Notice at 3 & Ex. B (demurrer). Defendant United States District Court For the Northern District of California 10 11 12 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 13 under 28 U.S.C. § 1331, and (2) diversity jurisdiction under 28 U.S.C. § 1332. A suit may be 14 removed from state court to federal court only if the federal court would have had subject matter 15 jurisdiction over the case. 28 U.S.C. § 1441(a). If it appears at any time before final judgment that 16 the federal court lacks subject matter jurisdiction, the federal court must remand the action to state 17 court. 28 U.S.C. § 1447(c). The party seeking removal bears the burden of establishing federal 18 jurisdiction. Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 19 2009). “The removal statute is strictly construed, and any doubt about the right of removal requires 20 resolution in favor of remand.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th 21 Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). 22 23 A. Federal Question Jurisdiction Under 28 U.S.C. § 1331, federal courts have original jurisdiction over civil actions “arising 24 under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Federal 25 jurisdiction “is determined (and must exist) as of the time the complaint is filed and removal is 26 effected.” Strotek Corp. v. Air Transport Ass’n of Am., 300 F.3d 1129, 1133 (9th Cir. 2002). 27 Removal pursuant to § 1331 is governed by the “well-pleaded complaint rule,” which provides that 28 2 Case No.: 12-CV-01163-LHK ORDER REMANDING CASE 1 federal question jurisdiction exists only when “a federal question is presented on the face of 2 plaintiff’s properly pleaded complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). 3 The state court complaint attached to the Notice of Removal discloses no federal statutory 4 or constitutional question. Plaintiff asserts only a single cause of action for unlawful detainer 5 pursuant to California Code of Civil Procedure § 1161(a)(b)(3). ECF No. 1, Ex. A. An unlawful 6 detainer action does not arise under federal law but rather is purely a creature of California law. 7 See Fed. Home Loan Mortg. Corp. v. Viray, 2012 WL 1231838, at *1 (N.D. Cal. Apr. 12, 2012); 8 Wells Fargo Bank v. Lapeen, 2011 WL 2194117, at *3 (N.D. Cal. June 6, 2011); Litton Loan 9 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 10 Defendant’s Notice of Removal asserts that federal question jurisdiction exists because 11 Defendant filed a demurrer in state court based on Plaintiff’s alleged noncompliance with the 12 notice requirements of the Protecting Tenants at Foreclosure Act, 12 U.S.C. § 5220, and therefore 13 resolution of the case “depend[s] on the determination of Defendants’ rights and Plaintiff’s duties 14 under federal law.” ECF No. 1 at 3; see ECF No. 1, Ex. B (demurrer). However, it is well-settled 15 that “a case may not be removed to federal court on the basis of a federal defense . . . even if the 16 defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal 17 defense is the only question truly at issue.” Caterpillar, 482 U.S. at 393. Nor can a counterclaim 18 “serve as the basis for [§ 1331] ‘arising under’ jurisdiction.” Holmes Grp., Inc. v. Vornado Air 19 Circulation Sys., Inc., 535 U.S. 826, 830-32 (2002). Thus, to the extent Defendant’s defenses or 20 counterclaims to the unlawful detainer action are based on alleged violations of federal law, those 21 allegations do not provide a basis for federal jurisdiction. 1 Because no federal question is 22 presented on the face of Plaintiff’s properly pleaded complaint, this Court lacks federal question 23 jurisdiction. See Caterpillar, 482 U.S. at 392. 24 25 26 27 28 B. Diversity Jurisdiction 1 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). 3 Case No.: 12-CV-01163-LHK ORDER REMANDING CASE 1 Even though Defendants’ Notice of Removal is based solely on an assertion of federal 2 question jurisdiction, the Court briefly notes that diversity jurisdiction over this action is also 3 lacking. Diversity jurisdiction exists only in suits between citizens of different states and “where 4 the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.” 28 5 U.S.C. § 1332(a). Here, Plaintiff’s Complaint seeks damages in an amount less than $10,000. 6 Notice of Removal, Ex. A. Thus, because the amount in controversy is less than $75,000, diversity 7 jurisdiction is also lacking. See 28 U.S.C. § 1332(a); St. Paul Mercury Indem. Co. v. Red Cab Co., 8 303 U.S. 283, 291 (1938) (the status of the case as disclosed by the plaintiff’s complaint is 9 controlling for purposes of removal). United States District Court For the Northern District of California 10 III. CONCLUSION 11 Defendant has not carried its burden of establishing federal jurisdiction. Accordingly, 12 Plaintiff’s Motion to Remand this matter to the Superior Court for the County of Monterey is 13 GRANTED. The Clerk shall close the file. 14 IT IS SO ORDERED. 15 16 Dated: April 30, 2012 _________________________________ LUCY H. KOH United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 4 Case No.: 12-CV-01163-LHK ORDER REMANDING CASE

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