Realty Investment Group LLC et al v. Pham et al

Filing 4

ORDER That Case Be Reassigned to a District Judge; ORDER granting 2 MOTION for Leave to Proceed in forma pauperis filed by Jose Ramirez; REPORT AND RECOMMENDATIONS re 1 Remand to State Court. Objections due by 11/3/2014. Signed by Magistrate Judge Howard R. Lloyd on 10/15/2014. (hrllc2, COURT STAFF) (Filed on 10/15/2014)

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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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REALTY INVESTMENT GROUP; MSB
HOMES LLC; VINCENT LUONG; INDER
BHANDAL; JAGROOP BHANDAL,

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Plaintiffs,
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v.
THUY THU PHAM and DOES 1-20,
Defendants.

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ORDER THAT CASE BE REASSIGNED
TO A DISTRICT JUDGE
ORDER GRANTING IFP
APPLICATION

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Case No. 5:14-cv-04586 HRL

REPORT AND RECOMMENDATION
RE REMAND TO STATE COURT

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Jose Ramirez removed this unlawful detainer action from the Santa Clara County Superior

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Court. 1 He also seeks leave to proceed in forma pauperis (IFP). For the reasons stated below, the

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undersigned grants the IFP application, but nonetheless recommends that this matter be remanded

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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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Although he is not named in the complaint, the record indicates that Ramirez is a renter on the
property in question.

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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). Ramirez qualifies financially for IFP status, and his IFP

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application therefore is granted. Even so, he may not proceed in this court because there is no

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federal subject matter jurisdiction over this matter.

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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 is
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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Ramirez fails to show that removal is proper based on any federal law. Federal courts have

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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

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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. Ramirez fails to identify the citizenship of each party, although he seems to suggest that

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the parties may be citizens of different states or countries. (Dkt. 1-1). But, this is of no import

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because the complaint indicates that the amount in controversy does not exceed $25,000 anyway.

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

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

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

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6, 2014); Maxwell Real Estate Investment LLC v. Bracho, No. C12-02774RMW, 2012 WL

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2906762 at *1 (N.D. Cal., July 13, 2012).

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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. Ramirez is advised that future attempts to remove this matter

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may result in sanctions.
Because the parties have yet to consent to the undersigned’s jurisdiction, this court

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United States District Court
Northern District of California

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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. Fed. R. Civ. P. 72.

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Dated: October 15, 2014

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______________________________________
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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5:14-cv-04586-HRL Notice has been electronically mailed to:
Kirkman Jan Hoffman

[e-mail]

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5:14-cv-04586-HRL A copy of this order sent by U.S. Mail to:
Jose Ramirez
10822 Barrington Bridge Court
Cupertino, CA 95014

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United States District Court
Northern District of California

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