ING Bank FSB v. Medina

Filing 6

ORDER REASSIGNING CASE TO A U.S. DISTRICT JUDGE; REPORT AND RECOMMENDATION re 3 MOTION for Leave to Proceed in forma pauperis filed by ING Bank FSB. Signed by Judge Paul S. Grewal on November 2, 2012. (psglc1, COURT STAFF) (Filed on 11/2/2012)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 8 SAN JOSE DIVISION 11 ING BANK FSB, 12 Plaintiff, v. 13 14 JOSE LUIS MEDINA, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) Case No.: C 12-05402 PSG ORDER REASSIGNING CASE TO A U.S. DISTRICT JUDGE; REPORT AND RECOMMENDATION (Re: Docket No. 3) 17 Defendant Jose Luis Medina (“Medina”) proceeding pro se applies to proceed in forma 18 pauperis. Having reviewed the papers, 19 IT IS HEREBY ORDERED that the case be reassigned to a District Judge with the 20 recommendation that the IFP be denied. 1 21 22 1 23 24 25 26 27 28 This court is ordering reassignment to a District Judge because, absent consent of all parties, a Magistrate Judge does not have authority to make case-dispositive rulings. See 28 U.S.C. §636(c); Tripati v. Rison, 847 F.2d 548, 548-49 (9th Cir. 1988). The Ninth Circuit has left open the question of whether a remand to state court is a “pretrial matter” which may be referred to a magistrate judge for determination pursuant to 28 U.S.C. §636(b)(1)(A). See Nasca v. Peoplesoft, 160 F.3d 578, 580 n. 3 (9th Cir. 1998) (“We express no opinion regarding [the magistrate judge’s] authority [to remand the case] had the matter been referred under 28 U.S.C. §636(b).”). It nonetheless appears that all other appellate courts that have addressed the issue have found that remand is not merely a pretrial matter. See, e.g., In re U.S. Healthcare, 159 F.3d 142, 145-46 (3d Cir. 1998) (finding that a remand order is the “functional equivalent” of an order of dismissal for purposes of 28 U.S.C. §636(b)(1)(A)). Accordingly, out of an abundance of caution, the court proceeds by way of a recommendation and reassignment order. 1 Case No.: C 12-05402 PSG ORDER 1 2 IT IS FURTHER RECOMMENDED that the case be remanded to state court based on lack of subject matter or diversity jurisdiction. 3 Granting or refusing permission to proceed in forma pauperis is a matter within the sound 4 discretion of the trial court. 2 It is the court’s duty to examine any IFP application “to determine 5 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 6 the court is bound to deny a motion seeking leave to proceed in forma pauperis.” 3 Moreover, a 7 federal court must dismiss a case such as this if the court determines that the case is: (1) frivolous; 8 (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a 9 defendant who is immune from such relief. 4 United States District Court For the Northern District of California 10 Here, Medina’s removal of Plaintiff ING Bank FSB’s (“ING”) unlawful detainer action to 11 federal court lacks merit because this court has neither subject matter nor diversity jurisdiction over 12 Medina’s claims. It is well-settled that federal courts do not have federal question jurisdiction over 13 unlawful detainer actions, where federal law does not create the cause of action and Medina’s right 14 to relief does not depend on a resolution of a question of federal law. 5 Although Medina alleges a 15 violation of the federal MHA program and a deprivation of equal protection by a state actor, 16 “removability cannot be created by defendant pleading a counter-claim presenting a federal 17 question.” 6 Because the complaint on its face presents no federal question, and federal jurisdiction 18 cannot be bootstrapped by the pleading of a defense or counterclaim, the court finds that the 19 unlawful detainer action must be remanded to determination by the state court. The court further 20 2 See Shobe v. People of State of California, 362 F.2d 545, 545 (9th Cir. 1966). 3 Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965). 4 See 28 U.S.C. §1915(e)(2). 21 22 23 5 24 25 See, e.g., Eden Housing Mgmt., Inc. v. Muhammad, No. C 07-4325 SBA, 2007 U.S. Dist. LEXIS 90294, 2007 WL 4219397, at *2-3 (no federal question on the face of unlawful detainer complaint); Oritz, 2008 U.S. Dist. LEXIS 86925, 2008 WL 4771932, at *1. 6 26 27 28 See Eden Housing Mgmt., Inc., 2007 U.S. Dist. LEXIS 90294, 2007 WL 4219397, at *2 (quoting Takeda v. Northwestern Nat. Life Ins. Co., 765 F.2d 815, 822 (9th Cir. 1985) (citations omitted)). See also Citibank N.A. v. Ortiz, No. 08-cv-1301 LAB, 2008 U.S. Dist. LEXIS 86925, 2008 WL 4771932, at *1 (S.D. Cal. Oct. 28, 2008) (“Neither allegations or affirmative defenses in an Answer not in the petition for removal can create federal jurisdiction.”) (quoting Wayne v. DHL Worldwide Express, 294 F.3d 1179, 1183 (9th Cir. 2002). 2 Case No.: C 12-05402 PSG ORDER 1 finds no diversity jurisdiction based on ING’s unlawful detainer action, which was filed in the 2 superior court as a case of “limited civil jurisdiction” amounting to less than $10,000 in 3 controversy. 4 In sum, the undersigned finds that there is no basis for jurisdiction over ING’s unlawful 5 detainer action in this court and therefore no basis on which to grant Medina’s IFP application. 6 IT IS SO ORDERED. 7 Dated: 11/2/2012 _________________________________ PAUL S. GREWAL United States Magistrate Judge 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Case No.: C 12-05402 PSG ORDER

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