Bank of America N.A. et al v. Contreras

Filing 5

ORDER TO SHOW CAUSE RE: SUBJECT MATTER JURISDICATION Re: Dkt. No. 1 . Contreras to show cause in writing why this case should not be remanded to state court by 7/16/2015. All parties must file a consent or declination by 7/14/2015. Signed by Judge Nathanael Cousins on 7/2/2015. (lmh, COURT STAFF) (Filed on 7/2/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BANK OF AMERICA N.A., IRWIN
WELKER,

United States District Court
Northern District of California

Plaintiffs,
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v.
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Case No.15-cv-02961-NC

ORDER TO SHOW CAUSE RE:
SUBJECT MATTER JURISDICTION
Re: Dkt. No. 1

FABIO A. CONTRERAS,
Defendant.

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The Court issues this order on its own motion, to address concerns regarding the

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apparent lack of subject matter jurisdiction. Pro se defendant Fabio A. Contreras removed

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the case to this Court. Dkt. No. 1. While the notice of removal asserts that removal is

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proper based on federal question jurisdiction, there appears to be no basis for this Court’s

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jurisdiction. The Court orders Contreras to show cause why this case should not be

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remanded to state court for lack of subject matter jurisdiction.

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Federal courts are courts of limited jurisdiction and are presumptively without

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jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

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Removal of a state court action to federal court is appropriate only if the federal court

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would have had original subject matter jurisdiction over the suit. See 28 U.S.C. § 1441(a).

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A federal district court must remand a removed case to state court “[i]f at any time before

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the final judgment it appears that the district court lacks subject matter jurisdiction.” Id.

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§ 1447(c); see also Maniar v. FDIC, 979 F.2d 782, 784-85 (9th Cir. 1992) (noting that

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section 1447(c) permits a district court to remand on its own motion for lack of subject

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matter jurisdiction). In deciding whether removal was proper, courts strictly construe the

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removal statute against finding jurisdiction, and the party invoking federal jurisdiction

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bears the burden of establishing that removal was appropriate. Provincial Gov’t of

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Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009) (citations omitted).

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District courts have federal question jurisdiction over “all civil actions arising under
the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A case “arises

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under” federal law if the complaint establishes “either that federal law creates the cause of

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action or that the plaintiff’s right to relief necessarily depends on resolution of a substantial

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question of federal law.” Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1219 (9th

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United States District Court
Northern District of California

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Cir. 2009) (citations omitted). Federal jurisdiction exists only when a federal question is

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presented on the face of the plaintiff’s properly pleaded complaint. Provincial Gov’t of

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Marinduque, 582 F.3d at 1091.

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As to state law claims, original federal jurisdiction may be available where “some

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substantial, disputed question of federal law is a necessary element of one of the well-

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pleaded state claims.” Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation

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Trust for S. California, 463 U.S. 1, 13 (1983). “[T]he question is, does a state-law claim

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necessarily raise a stated federal issue, actually disputed and substantial, which a federal

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forum may entertain without disturbing any congressionally approved balance of federal

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and state judicial responsibilities.” Grable & Sons Metal Products, Inc. v. Darue Eng’g &

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Mfg., 545 U.S. 308, 314 (2005). “When a claim can be supported by alternative and

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independent theories—one of which is a state law theory and one of which is a federal law

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theory—federal question jurisdiction does not attach because federal law is not a necessary

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element of the claim.” Rains v. Criterion Sys., Inc., 80 F.3d 339, 346 (9th Cir. 1996).

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Here, Contreras asserts that this case involves a federal question because it includes

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claims brought under certain federal statutes (e.g., Federal Fair Debt Collection Practices

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Act, Truth in Lending Act). Dkt. No. 1 at 2. Contreras also states that “California Civil

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Code Sections § 2923.5, § 2923.6, § 2924, and § 2923.5 et. seq., have been
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unconstitutionally applied to Defendant.” Id.
Contreras, however, fails to attach a pleading establishing “either that federal law

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creates the cause of action or that the plaintiff’s right to relief necessarily depends on

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resolution of a substantial question of federal law.” Proctor, 584 F.3d at 1219 (citations

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omitted). Contreras does attach a “Notice of Motion and Motion to Consolidate,” which

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he filed with the superior court in Santa Clara County. Dkt. No. 1 at 6.

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Yet this motion, in addition to asserting only state law claims, suggests Contreras is

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actually the plaintiff seeking damages arising from a foreclosure. Id. at 8 (“Plaintiff is

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seeking monetary damages arising from the fraudulent foreclosure of their personal
residence valued in excess of $399,000.00.”). The general removal statute provides that

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United States District Court
Northern District of California

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only defendants can remove cases from state court to federal court. 28 U.S.C. § 1441.

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As to the state law provisions that Contreras alleges were “unconstitutionally

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applied” to him, the mere reference of a federal statute in a pleading [e.g., notice of

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removal] will not convert a state law claim into a federal cause of action if the federal

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statute is not a necessary element of the state law claim and no preemption exists.”).

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Easton v. Crossland Mortgage Corp., 114 F.3d 979, 982 (9th Cir. 1997) (emphasis added).

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The notice of removal provides no explanation for why the state law claims should be

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deemed to arise out of or be predicated on alleged violations of federal law.

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Accordingly, the Court orders Contreras to show cause in writing by July 16, 2015,

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why this case should not be remanded to state court for lack of subject matter jurisdiction.

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Additionally, all parties must file a consent or declination to proceed before a magistrate

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judge by July 14, 2015. Dkt. No. 4.

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If Contreras fails to respond to the order to show cause by July 16, 2015, the Court

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will remand this action to state court.

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IT IS SO ORDERED.

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Dated: July 2, 2015

_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BANK OF AMERICA N.A., et al.,

Case No. 15-cv-02961-NC

Plaintiffs,
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v.

CERTIFICATE OF SERVICE

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FABIO A. CONTRERAS,
Defendant.

United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

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That on July 2, 2015, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Fabio A. Contreras
5965 Cahalan Avenue
San Jose, CA 95123
Dated: July 2, 2015

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Richard W. Wieking
Clerk, United States District Court

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By:________________________
Lili Harrell, Deputy Clerk to the
Honorable NATHANAEL M. COUSINS
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