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)

Download PDF
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 RAYMOND ANTHONY BIRNBAUMER, HOLLY GLADYS STEWART, Plaintiffs, 13 14 15 16 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. 17 Defendant Rosemary E. Brock removed this unlawful detainer action from the Santa Cruz 18 County Superior Court. For the reasons stated below, the undersigned recommends that this 19 matter be remanded to state court. 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 1 Defendant fails to show that removal is proper based on any federal law. Federal courts 2 have original jurisdiction over civil actions “arising under the Constitution, laws, or treaties of the 3 United States.” 28 U.S.C. § 1331. A claim “arises under” federal law if, based on the “well- 4 pleaded complaint rule,” the plaintiff alleges a federal claim for relief. Vaden v. Discovery Bank, 5 129 S. Ct. 1262, 1272 (2009). Defenses and counterclaims asserting a federal question do not 6 satisfy this requirement. Id. Here, plaintiffs’ complaint presents a claim arising only under state 7 law. It does not allege any federal claims whatsoever. Allegations in a removal notice or in a 8 response to the complaint cannot provide this court with federal question jurisdiction. 9 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 11 United States District Court Northern District of California 10 $75,000 (exclusive of interest and costs) and is between citizens of different states. 28 U.S.C. 12 §1332. The complaint indicates that the amount demanded does not exceed $10,000. Moreover, 13 unlawful detainer actions involve the right to possession alone, not title to the property. So, the 14 fact that the subject property may be worth more than $75,000 is irrelevant. MOAB Investment 15 Group, LLC v. Moreno, No. C14-0092EMC, 2014 WL 523092 at *1 (N.D. Cal., Feb. 6, 2014); 16 Maxwell Real Estate Investment LLC v. Bracho, No. C12-02774RMW, 2012 WL 2906762 at *1 17 (N.D. Cal., July 13, 2012). And, in any event, the record indicates that defendant is a California 18 citizen. (See Dkt. 1-1). An action may not be removed on the basis of diversity “if any of the 19 parties in interest properly joined and served as defendants is a citizen of the State in which such 20 action is brought.” 28 U.S.C. § 1441(b)(2); see also Spencer v. U.S. Dist. Ct., 393 F.3d 867, 870 21 (9th Cir. 2004) (“It is thus clear that the presence of a local defendant at the time removal is sought 22 bars removal.”). 23 There being no basis for federal jurisdiction over plaintiffs’ unlawful detainer action, the 24 removal of this case was improper. Defendant is advised that future attempts to remove this 25 matter may result in sanctions. 26 Because the parties have yet to consent to the undersigned’s jurisdiction, this court 27 ORDERS the Clerk of the Court to reassign this case to a District Judge. The undersigned further 28 2 1 RECOMMENDS that the newly assigned judge remand the case to the Santa Cruz County 2 Superior Court. Any party may serve and file objections to this Report and Recommendation 3 within fourteen days after being served. Fed. R. Civ. P. 72. 4 Dated: July 14, 2014 5 6 ______________________________________ HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 7 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 1 2 3 5:14-cv-03064-HRL Notice sent by U.S. Mail to: Todd Rothbard 100 Saratoga Avenue #200 Santa Clara, CA 95051 4 5 6 7 8 Plaintiffs’ Counsel Rosemary E. Brock 25830 Adams Road Los Gatos, CA 95033 Pro Se Defendant 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 4

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?