DGL Realty Inc. v. Corona

Filing 3

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION United States District Court Northern District of California 11 12 DGL REALTY, INC., Case No. 5:14-cv-01402 HRL Plaintiff, 13 ORDER THAT CASE BE REASSIGNED TO A DISTRICT JUDGE v. 14 15 16 ESTHER CORONA and DOES 1 through 20, inclusive, REPORT AND RECOMMENDATION RE REMAND TO STATE COURT Defendant. 17 Defendant Esther Corona removed this unlawful detainer action from the Santa Clara 18 County Superior Court. For the reasons stated below, the undersigned recommends that this 19 matter be remanded. 20 Removal to federal court is proper where the federal court would have original subject 21 matter jurisdiction over the complaint. 28 U.S.C. § 1441. The removal statutes are strictly 22 construed against removal and place the burden on the defendant to demonstrate that removal was 23 proper. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus 24 v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). Additionally, the court has a continuing duty to 25 determine whether it has subject matter jurisdiction. Fed. R. Civ. P. 12(h). A case must be 26 remanded to the state court if it appears at any time before final judgment that the court lacks 27 subject matter jurisdiction. 28 U.S.C. § 1447(c). 28 Federal courts have original jurisdiction over civil actions “arising under the Constitution, 1 laws, or treaties of the United States.” 28 U.S.C. § 1331. A claim “arises under” federal law if, 2 based on the “well-pleaded complaint rule,” the plaintiff alleges a federal claim for relief. Vaden 3 v. Discovery Bank, 129 S. Ct. 1262, 1272 (2009). Defenses and counterclaims asserting a federal 4 question do not satisfy this requirement. Id. Here, plaintiff’s complaint presents claims arising 5 only under state law. It does not allege any federal claims whatsoever. The notice of removal 6 asserts that defendant’s due process rights have been violated. But, allegations in a removal notice 7 or in a response to the complaint cannot provide this court with federal question jurisdiction. 8 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 10 value of $75,000 (exclusive of interest and costs) and is between citizens of different states. 28 11 United States District Court Northern District of California 9 U.S.C. §1332. The complaint indicates that the amount demanded does not exceed $10,000. And, 12 the record presented indicates that defendant is a California citizen. (See Dkt. 1-1, Section III). 13 This matter cannot be removed on the basis of diversity. 28 U.S.C. § 1441(b)(2) (an action may 14 not be removed “if any of the parties in interest properly joined and served as defendants is a 15 citizen of the State in which such action is brought.”); see also Spencer v. U.S. Dist. Ct., 393 F.3d 16 867, 870 (9th Cir. 2004) (“It is thus clear that the presence of a local defendant at the time removal 17 is sought bars removal.”). 18 Because not all parties have consented to the undersigned’s jurisdiction, this court 19 ORDERS the Clerk of the Court to reassign this case to a District Judge. The undersigned further 20 RECOMMENDS that the newly assigned judge remand the case to the Santa Clara County 21 Superior Court. Any party may serve and file objections to this Report and Recommendation 22 within fourteen days after being served. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. 23 SO ORDERED. 24 Dated: March 27, 2014 25 26 ______________________________________ HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 27 28 2 1 2 5:14-cv-01402-HRL Notice has been electronically mailed to: Kirkman Jan Hoffman kirk@kirkhoffman.com 3 4 5:14-cv-01402-HRL Notice sent by U.S. Mail to: 5 Esther Corona 249 Beegum Way San Jose, CA 95123 6 7 Pro Se Defendant 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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