AFS Investment Group, LLC et al v. Estebar et al

Filing 6

ORDER That Case Be Reassigned to a District Judge; REPORT AND RECOMMENDATIONS re 1 Remand to State Court. Objections due by 5/3/2013. Signed by Magistrate Judge Howard R. Lloyd on 4/17/2013. (hrllc2, COURT STAFF) (Filed on 4/17/2013)

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1 2 *E-FILED: April 17, 2013* 3 4 5 6 NOT FOR CITATION 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 For the Northern District of California United States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 No. C13-01726 HRL AFS INVESTMENT GROUP, LLC; 1 TO INFINITY, LLC dba 1 TO INFINITY DB PLAN, 13 ORDER THAT CASE BE REASSIGNED TO A DISTRICT JUDGE Plaintiffs, REPORT AND RECOMMENDATION RE REMAND TO STATE COURT v. 14 15 16 MAXIMO F. ESTEBAR JR; and DOES 1 to 20, inclusive, Defendants. / 17 18 Defendant Maximo F. Estebar, Jr. removed this unlawful detainer action from the Santa 19 Clara County Superior Court. For the reasons stated below, the undersigned recommends that 20 this matter be remanded. 21 Removal to federal court is proper where the federal court would have original subject 22 matter jurisdiction over the complaint. 28 U.S.C. § 1441. The removal statutes are strictly 23 construed against removal and place the burden on the defendant to demonstrate that removal 24 was proper. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) 25 (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). Additionally, the court has a 26 continuing duty to determine whether it has subject matter jurisdiction. FED. R. CIV. P. 12(h). 27 A case must be remanded to the state court if it appears at any time before final judgment that 28 1 the court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). jurisdiction over civil actions in which the matter in controversy exceeds the sum or value of 4 $75,000 (exclusive of interest and costs) and is between citizens of different states. 28 U.S.C. 5 §1332. The complaint indicates that the amount demanded does not exceed $10,000. 6 Moreover, defendant says that he is a California resident. (Notice of Removal ¶ 6). As a 7 California defendant, Estebar cannot remove an action on the basis of diversity. 28 U.S.C. § 8 1441(b)(2) (an action may not be removed “if any of the parties in interest properly joined and 9 served as defendants is a citizen of the State in which such action is brought.”); see also Spencer 10 v. U.S. Dist. Ct., 393 F.3d 867, 870 (9th Cir. 2004) (“It is thus clear that the presence of a local 11 For the Northern District of California Defendant fails to show that diversity jurisdiction exists. Federal district courts have 3 United States District Court 2 defendant at the time removal is sought bars removal.”). 12 Although Estebar does not assert federal question jurisdiction, there is no basis for it in 13 any event. Federal courts have original jurisdiction over civil actions “arising under the 14 Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A claim “arises under” 15 federal law if, based on the “well-pleaded complaint rule,” the plaintiff alleges a federal claim 16 for relief. Vaden v. Discovery Bank, 129 S. Ct. 1262, 1272 (2009). Defenses and 17 counterclaims asserting a federal question do not satisfy this requirement. Id. Here, plaintiffs’ 18 complaint presents claims arising only under state law. It does not allege any federal claims 19 whatsoever. Allegations in a removal notice or in a response to the complaint cannot provide 20 this court with federal question jurisdiction. 21 Because the parties have yet to consent to the undersigned’s jurisdiction, this court 22 ORDERS the Clerk of the Court to reassign this case to a District Judge. The undersigned 23 further RECOMMENDS that the newly assigned judge remand the case to the Santa Clara 24 County Superior Court. Any party may serve and file objections to this Report and 25 Recommendation within fourteen days after being served. 28 U.S.C. § 636(b)(1); FED. R. CIV. 26 P. 72. 27 Dated: April 17, 2013 28 HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 2 1 5:13-cv-01726-HRL Notice has been electronically mailed to: 2 Kirkman Jan Hoffman kirk@kirkhoffman.com 3 4 5:13-cv-01726-HRL Notice sent on April 17, 2013 by U.S. Mail to: 5 Maximo F. Estebar, Jr. 3451 Gila Drive San Jose, CA 95148 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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