Home Equity Loan Trust, Series 2007-1 v. Podesta et al

Filing 3

ORDER That Case Be Reassigned to a District Judge; REPORT AND RECOMMENDATIONS re 1 Remand to State Court. Objections due by 3/28/2013. Signed by Magistrate Judge Howard R. Lloyd on 3/11/2013. (hrllc2, COURT STAFF) (Filed on 3/11/2013)

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1 2 *E-FILED: March 11, 2013* 3 4 5 6 NOT FOR CITATION 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 For the Northern District of California United States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 12 13 HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE HOLDER OF NOMURA HOME EQUITY LOAN, INC., HOME EQUITY LOAN TRUST, SERIES 2007-1, 14 No. C13-01064 HRL ORDER THAT CASE BE REASSIGNED TO A DISTRICT JUDGE REPORT AND RECOMMENDATION RE REMAND TO STATE COURT Plaintiffs, v. 15 16 17 FRANK A. PODESTA; DOES 1 to 10, inclusive, Defendants. / 18 19 Defendant Frank A. Podesta removed this unlawful detainer action from the Santa Cruz 20 County Superior Court. For the reasons stated below, the undersigned recommends that this 21 matter be remanded. 22 Removal to federal court is proper where the federal court would have original subject 23 matter jurisdiction over the complaint. 28 U.S.C. § 1441. The removal statutes are strictly 24 construed against removal and place the burden on the defendant to demonstrate that removal 25 was proper. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) 26 (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). Additionally, the court has a 27 continuing duty to determine whether it has subject matter jurisdiction. FED. R. CIV. P. 12(h). 28 A case must be remanded to the state court if it appears at any time before final judgment that 1 the court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). 2 Defendant fails to show that removal is proper based on any federal law. Federal courts 3 have original jurisdiction over civil actions “arising under the Constitution, laws, or treaties of 4 the United States.” 28 U.S.C. § 1331. A claim “arises under” federal law if, based on the 5 “well-pleaded complaint rule,” the plaintiff alleges a federal claim for relief. Vaden v. 6 Discovery Bank, 129 S. Ct. 1262, 1272 (2009). Defenses and counterclaims asserting a federal 7 question do not satisfy this requirement. Id. Defendant contends that plaintiff violated federal 8 law by serving an allegedly defective notice to vacate the premises. Plaintiff’s complaint, 9 however, presents claims arising only under state law. It does not allege any federal claims whatsoever. Allegations in a removal notice or in a response to the complaint cannot provide 11 For the Northern District of California United States District Court 10 this court with federal question jurisdiction. 12 Defendant does not assert diversity jurisdiction under 28 U.S.C. § 1332, but there does 13 not appear to be any basis for it in any event. The complaint indicates that the amount 14 demanded does not exceed $10,000. Moreover, as a California defendant, Andrade cannot 15 remove an action on the basis of diversity. 28 U.S.C. § 1441(b)(2) (an action may not be 16 removed “if any of the parties in interest properly joined and served as defendants is a citizen of 17 the State in which such action is brought.”); see also Spencer v. U.S. Dist. Ct., 393 F.3d 867, 18 870 (9th Cir. 2004) (“It is thus clear that the presence of a local defendant at the time removal is 19 sought bars removal.”). 20 Because the parties have yet to consent to the undersigned’s jurisdiction, this court 21 ORDERS the Clerk of the Court to reassign this case to a District Judge. The undersigned 22 further RECOMMENDS that the newly assigned judge remand the case to the Santa Cruz 23 County Superior Court. Any party may serve and file objections to this Report and 24 Recommendation within fourteen days after being served. 28 U.S.C. § 636(b)(1); FED. R. CIV. 25 P. 72. 26 SO ORDERED. 27 Dated: March 11, 2013 28 HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 2 1 5:13-cv-01064-HRL Notice has been electronically mailed to: 2 James T. Lee jamesl@bdfgroup.com 3 4 5:12-cv-03594-HRL Notice sent on March 11, 2013 by U.S. Mail to: 5 Frank A. Podesta 349 Canham Road Scotts Valley, CA 95066 6 7 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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