Monterey Bay Military Housing, LLC v. Morris et al

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATIONS; REMANDING CASE TO STATE COURT. Signed by Hon. Beth Labson Freeman on 9/17/2014. (Attachments: # 1 Report and Recommendation)(blflc2, COURT STAFF) (Filed on 9/17/2014) (Additional attachment(s) added on 9/17/2014: # 3 Certificate/Proof of Service) (tsh, COURT STAFF).

*E-Filed: August 29, 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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MONTEREY BAY MILITARY HOUSING,
LLC,
Plaintiff,

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v.
TYRRELL A. MORRIS; et al.,
Defendants.

Case No. C14-03807 HRL
ORDER GRANTING APPLICATION
TO PROCEED IN FORMA PAUPERIS
ORDER THAT CASE BE REASSIGNED
TO A DISTRICT JUDGE
REPORT AND RECOMMENDATION
RE REMAND TO STATE COURT
[Re: Docket No. 3]

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Defendants Tyrrell A. Morris and Katrina M. Kellerman removed this unlawful detainer
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action from the Monterey County Superior Court. They also seek leave to proceed in forma
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pauperis (IFP). For the reasons stated below, the undersigned grants the IFP application and
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recommends that this matter be remanded to state court.
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A court may authorize the commencement of a civil action in forma pauperis (“IFP”) if the
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court is satisfied that the applicant cannot pay the requisite filing fees. 28 U.S.C § 1915(a)(1). In
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evaluating such an application, the court should “gran[t] or den[y] IFP status based on the
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applicant’s financial resources alone and then independently determin[e] whether to dismiss the
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complaint on the grounds that it is frivolous.” Franklin v. Murphy, 745 F.2d 1221, 1226-27 n.5
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(9th Cir. 1984). A court may dismiss a case filed without the payment of the filing fee whenever it

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determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief

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may be granted; or (iii) seeks monetary relief against a defendant who is immune from such

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relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). Having reviewed Defendants’ financial affidavit, the

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court will grant the application. Nevertheless, this court finds that subject matter jurisdiction is

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lacking and that this action should be remanded to state court.

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Removal to federal court is proper where the federal court would have original subject
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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United States District Court
Northern District of California

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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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Defendants fail 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, plaintiff’s 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

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jurisdiction over civil actions in which the matter in controversy exceeds the sum or value of

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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).

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

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removal of this case was improper. Defendants are advised that future attempts to remove this

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matter may result in sanctions.
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 Monterey County Superior

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United States District Court
Northern District of California

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Court. Any party may serve and file objections to this Report and Recommendation within

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fourteen days after being served. Fed. R. Civ. P. 72.

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Dated: August 29, 2014

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______________________________________
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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C14-03807 HRL Notice will be electronically mailed to:

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Kajal Nasreen Islam

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C14-03807 HRL Notice will be mailed to:

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[e-mail]

Debrah E. Mattison
338 Brittany Road
Seaside, CA 93955

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United States District Court
Northern District of California

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Katrina M. Kellerman
338 Brittany Road
Seaside, CA 93955
Tyrrell A. Morris
338 Brittany Road
Seaside, CA 93955
Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

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