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)
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NOT FOR CITATION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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?