Birnbaumer et al v. Brock 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 8/1/2014. Signed by Magistrate Judge Howard R. Lloyd on 7/14/2014. (hrllc2, COURT STAFF) (Filed on 7/14/2014)

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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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RAYMOND ANTHONY BIRNBAUMER,
HOLLY GLADYS STEWART,
Plaintiffs,

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v.
LYNN H. BROCK, ROSEMARY E.
BROCK, DOES I through V, inclusive,

Case No. 5:14-cv-03064 HRL
ORDER THAT CASE BE REASSIGNED
TO A DISTRICT JUDGE
REPORT AND RECOMMENDATION
RE REMAND TO STATE COURT

Defendants.
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Defendant Rosemary E. Brock removed this unlawful detainer action from the Santa Cruz
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County Superior Court. For the reasons stated below, the undersigned recommends that this
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matter be remanded to state court.
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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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Defendant fails to show that removal is proper based on any federal law. Federal courts

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have original jurisdiction over civil actions “arising under the Constitution, laws, or treaties of the

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United States.” 28 U.S.C. § 1331. A claim “arises under” federal law if, based on the “well-

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pleaded complaint rule,” the plaintiff alleges a federal claim for relief. Vaden v. Discovery Bank,

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129 S. Ct. 1262, 1272 (2009). Defenses and counterclaims asserting a federal question do not

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satisfy this requirement. Id. Here, plaintiffs’ complaint presents a claim arising only under state

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law. It does not allege any federal claims whatsoever. Allegations in a removal notice or in a

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response to the complaint cannot provide this court with federal question jurisdiction.

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Nor does this court find any basis for diversity jurisdiction. Federal district courts have
jurisdiction over civil actions in which the matter in controversy exceeds the sum or value of

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United States District Court
Northern District of California

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$75,000 (exclusive of interest and costs) and is between citizens of different states. 28 U.S.C.

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§1332. The complaint indicates that the amount demanded does not exceed $10,000. Moreover,

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unlawful detainer actions involve the right to possession alone, not title to the property. So, the

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fact that the subject property may be worth more than $75,000 is irrelevant. MOAB Investment

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Group, LLC v. Moreno, No. C14-0092EMC, 2014 WL 523092 at *1 (N.D. Cal., Feb. 6, 2014);

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Maxwell Real Estate Investment LLC v. Bracho, No. C12-02774RMW, 2012 WL 2906762 at *1

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(N.D. Cal., July 13, 2012). And, in any event, the record indicates that defendant is a California

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citizen. (See Dkt. 1-1). An action may not be removed on the basis of diversity “if any of the

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parties in interest properly joined and served as defendants is a citizen of the State in which such

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action is brought.” 28 U.S.C. § 1441(b)(2); see also Spencer v. U.S. Dist. Ct., 393 F.3d 867, 870

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(9th Cir. 2004) (“It is thus clear that the presence of a local defendant at the time removal is sought

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bars removal.”).

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There being no basis for federal jurisdiction over plaintiffs’ unlawful detainer action, the

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removal of this case was improper. Defendant is advised that future attempts to remove this

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matter may result in sanctions.

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Because the parties have yet to consent 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 Cruz 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. Fed. R. Civ. P. 72.

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Dated: July 14, 2014

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______________________________________
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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United States District Court
Northern District of California

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5:14-cv-03064-HRL Notice sent by U.S. Mail to:
Todd Rothbard
100 Saratoga Avenue #200
Santa Clara, CA 95051

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Plaintiffs’ Counsel
Rosemary E. Brock
25830 Adams Road
Los Gatos, CA 95033
Pro Se Defendant

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United States District Court
Northern District of California

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