Borquist v. Nino

Filing 6

ORDER ADOPTING 4 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE LLOYD, GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS, AND REMANDING ACTION TO MONTEREY COUNTY SUPERIOR COURT. Signed by Judge Beth Labson Freeman on 1/27/2017. (blflc4, COURT STAFF) (Filed on 1/27/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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RICHARD BORQUIST,

Case No. 17-cv-00068-BLF

Plaintiff,
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v.
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RAJAE NINO,
Defendant.

United States District Court
Northern District of California

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ORDER ADOPTING REPORT AND
RECOMMENDATION OF
MAGISTRATE JUDGE LLOYD,
GRANTING APPLICATION TO
PROCEED IN FORMA PAUPERIS, AND
REMANDING ACTION TO
MONTEREY COUNTY SUPERIOR
COURT

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On January 9, 2017, Magistrate Judge Howard R. Lloyd in his Report and
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Recommendation (“R&R”) determined that Defendant Rajae Nino’s application to proceed in
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forma pauperis should be granted and that this unlawful detainer action should be remanded to
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state court. See ECF 4. No objections have been filed by Defendant.
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When a party makes no objection to an R&R, the Court reviews it for clear error or
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manifest injustice. Fed. R. Civ. P. 72(b). After conducting an appropriate review, the Court may
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“accept, reject, or modify, in whole or in part, the findings or recommendations made by the
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magistrate judge.” 28 U.S.C. § 636(b)(1)(C). The Court has reviewed and thoroughly considered
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Judge Lloyd’s R&R.
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First, having considered the application to proceed in forma pauperis and the complaint,
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the Court hereby GRANTS Nino’s application to proceed in forma pauperis.
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Next, as for the recommendation to remand the case, the Court notes that Nino, as the party
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seeking removal, bears the burden of demonstrating subject matter jurisdiction. The Court
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concludes that there is no federal jurisdiction in the instant case for several reasons. One is that
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the Protecting Tenants at Foreclosure Act of 2009 (FPFA) has expired and does not apply to the
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asserted claims. Fairview Tasman LLC v. Young, No. 15-CV-05493-LHK, 2016 WL 199060, at

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*2 (N.D. Cal. Jan. 18, 2016). Another is that PTFA has no express or implied private right of

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action. Logan v. U.S. Bank Nat’l Ass’n, 722 F.3d 1163, 1170-73 (9th Cir. 2013). Lastly, the

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PTFA is not an essential element of Plaintiff’s claim. Thus, this Court does not have subject

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matter jurisdiction over this action.

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Finding the R&R correct, well-reasoned, and thorough, the Court adopts it in every

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respect. 28 U.S.C. § 636(b). Accordingly, the Court GRANTS the motion to proceed in forma

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pauperis and the above-titled unlawful detainer action is REMANDED to Monterey County

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Superior Court.

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United States District Court
Northern District of California

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IT IS SO ORDERED.

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Dated: January 27, 2017
______________________________________
BETH LABSON FREEMAN
United States District Judge

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