DGL Realty Inc. v. Corona
Filing
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ORDER That Case Be Reassigned to a District Judge; REPORT AND RECOMMENDATIONS re Remand to State Court re 1 . Objections due by 4/14/2014. Signed by Magistrate Judge Howard R. Lloyd on 3/27/2014. (hrllc2, COURT STAFF) (Filed on 3/27/2014)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
United States District Court
Northern District of California
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DGL REALTY, INC.,
Case No. 5:14-cv-01402 HRL
Plaintiff,
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ORDER THAT CASE BE REASSIGNED
TO A DISTRICT JUDGE
v.
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ESTHER CORONA and DOES 1 through
20, inclusive,
REPORT AND RECOMMENDATION
RE REMAND TO STATE COURT
Defendant.
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Defendant Esther Corona removed this unlawful detainer action from the Santa Clara
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County Superior Court. For the reasons stated below, the undersigned recommends that this
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matter be remanded.
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Removal to federal court is proper where the federal court would have original subject
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matter jurisdiction over the complaint. 28 U.S.C. § 1441. The removal statutes are strictly
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construed against removal and place the burden on the defendant to demonstrate that removal was
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proper. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus
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v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). Additionally, the court has a continuing duty to
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determine whether it has subject matter jurisdiction. Fed. R. Civ. P. 12(h). A case must be
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remanded to the state court if it appears at any time before final judgment that the court lacks
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subject matter jurisdiction. 28 U.S.C. § 1447(c).
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Federal courts have original jurisdiction over civil actions “arising under the Constitution,
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laws, or treaties of the United States.” 28 U.S.C. § 1331. A claim “arises under” federal law if,
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based on the “well-pleaded complaint rule,” the plaintiff alleges a federal claim for relief. Vaden
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v. Discovery Bank, 129 S. Ct. 1262, 1272 (2009). Defenses and counterclaims asserting a federal
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question do not satisfy this requirement. Id. Here, plaintiff’s complaint presents claims arising
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only under state law. It does not allege any federal claims whatsoever. The notice of removal
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asserts that defendant’s due process rights have been violated. But, allegations in a removal notice
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or in a response to the complaint cannot provide this court with federal question jurisdiction.
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Additionally, defendant fails to show that diversity jurisdiction exists. Federal district
courts have jurisdiction over civil actions in which the matter in controversy exceeds the sum or
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value of $75,000 (exclusive of interest and costs) and is between citizens of different states. 28
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United States District Court
Northern District of California
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U.S.C. §1332. The complaint indicates that the amount demanded does not exceed $10,000. And,
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the record presented indicates that defendant is a California citizen. (See Dkt. 1-1, Section III).
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This matter cannot be removed on the basis of diversity. 28 U.S.C. § 1441(b)(2) (an action may
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not be removed “if any of the parties in interest properly joined and served as defendants is a
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citizen of the State in which such action is brought.”); see also Spencer v. U.S. Dist. Ct., 393 F.3d
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867, 870 (9th Cir. 2004) (“It is thus clear that the presence of a local defendant at the time removal
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is sought bars removal.”).
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Because not all parties have consented to the undersigned’s jurisdiction, this court
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ORDERS the Clerk of the Court to reassign this case to a District Judge. The undersigned further
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RECOMMENDS that the newly assigned judge remand the case to the Santa Clara County
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Superior Court. Any party may serve and file objections to this Report and Recommendation
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within fourteen days after being served. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.
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SO ORDERED.
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Dated: March 27, 2014
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______________________________________
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE
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5:14-cv-01402-HRL Notice has been electronically mailed to:
Kirkman Jan Hoffman
kirk@kirkhoffman.com
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5:14-cv-01402-HRL Notice sent by U.S. Mail to:
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Esther Corona
249 Beegum Way
San Jose, CA 95123
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Pro Se Defendant
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United States District Court
Northern District of California
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