Vigil et al v. Vasquez et al

Filing 5

ORDER for Reassignment to a District Judge; ORDER terminating 2 MOTION for Leave to Proceed in forma pauperis filed by Lorena Urbina Lopez; REPORT AND RECOMMENDATIONS re 4 Notice of Removal. Signed by Magistrate Judge Howard R. Lloyd on 5/9/2017. (hrllc2, COURT STAFF) (Filed on 5/9/2017)

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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 ROLDAN VIGIL; GRACIELA M. VIGIL, Plaintiffs, 13 14 15 16 v. SOFIA VASQUEZ; LEOPOLDO CERRITOS, Defendants. Case No.5:17-cv-02614-HRL ORDER FOR REASSIGNMENT TO A DISTRICT JUDGE ORDER TERMINATING APPLICATION TO PROCEED IN FORMA PAUPERIS 17 REPORT AND RECOMMENDATION RE REMAND 18 Re: Dkt. No. 2 19 Defendants Sofia Vasquez and Leopoldo Cerritos purport to remove this unlawful detainer 20 action from the Monterey County Superior Court, albeit all removal papers appear to have been 21 filed by one Lorena Urbina Lopez. Lopez also applies for leave to proceed in forma pauperis 22 (IFP). Having reviewed the record, and for the reasons stated below, the undersigned strikes the 23 IFP application and recommends that this matter be remanded to the state court for lack of federal 24 subject matter jurisdiction. 25 A court may authorize the commencement of a civil action in forma pauperis (“IFP”) if the 26 court is satisfied that the applicant cannot pay the requisite filing fees. 28 U.S.C § 1915(a)(1). In 27 evaluating such an application, the court should “gran[t] or den[y] IFP status based on the 28 applicant’s financial resources alone and then independently determin[e] whether to dismiss the 1 complaint on the grounds that it is frivolous.” Franklin v. Murphy, 745 F.2d 1221, 1226-27 n.5 2 (9th Cir. 1984). A court may dismiss a case filed without the payment of the filing fee whenever it 3 determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief 4 may be granted; or (iii) seeks monetary relief against a defendant who is immune from such 5 relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). The record suggests that Lopez, the IFP applicant, may 6 be a tenant of the property in question, but neither one of the named defendants has submitted a 7 signed IFP application. Accordingly, the IFP application is stricken and will be terminated. In 8 any event, for the reasons discussed below, the undersigned concludes that this case should be 9 remanded to the state court for lack of subject matter jurisdiction. 10 Removal to federal court is proper where the federal court would have original subject United States District Court Northern District of California 11 matter jurisdiction over the complaint. 28 U.S.C. § 1441. The removal statutes are strictly 12 construed against removal and place the burden on the defendant to demonstrate that removal is 13 proper. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus 14 v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). Additionally, the court has a continuing duty to 15 determine whether it has subject matter jurisdiction. Fed. R. Civ. P. 12(h). A case must be 16 remanded to the state court if it appears at any time before final judgment that the court lacks 17 subject matter jurisdiction. 28 U.S.C. § 1447(c). 18 Defendants fail to show that removal is proper based on any federal law. Federal courts 19 have original jurisdiction over civil actions “arising under the Constitution, laws, or treaties of the 20 United States.” 28 U.S.C. § 1331. A claim “arises under” federal law if, based on the “well- 21 pleaded complaint rule,” the plaintiff alleges a federal claim for relief. Vaden v. Discovery Bank, 22 129 S. Ct. 1262, 1272 (2009). Defenses and counterclaims asserting a federal question do not 23 satisfy this requirement. Id. Here, Lopez filed a “Notice of Claim of Unconstitutionality,” 24 alleging that the subject property is uninhabitable. However, allegations in a removal notice or in 25 a response to the complaint cannot provide this court with federal question jurisdiction. Plaintiffs’ 26 complaint presents a claim arising only under state law. (Dkt. 4). It does not allege any federal 27 claims whatsoever. 28 There is also no basis for diversity jurisdiction under 28 U.S.C. § 1332. Federal district 2 courts have jurisdiction over civil actions in which the matter in controversy exceeds the sum or 2 value of $75,000 (exclusive of interest and costs) and is between citizens of different states. 28 3 U.S.C. § 1332. As local defendants, defendants cannot remove this case here. Spencer v. U.S. 4 Dist. Ct. for Northern Dist. of California, 393 F.3d 867, 870 (9th Cir. 2004) (“It is thus clear that 5 the presence of a local defendant at the time removal is sought bars removal.”); 28 U.S.C. § 6 1441(b)(2) (stating that a case “may not be removed if any of the parties in interest properly joined 7 and served as defendants is a citizen of the State in which such action is brought.”). In any event, 8 the complaint indicates that the amount in controversy does not exceed $10,000. (Dkt. 4 at ECF p. 9 4). Moreover, unlawful detainer actions involve the right to possession alone, not title to the 10 property. So, the fact that the subject property may be worth more than $75,000 is irrelevant. 11 United States District Court Northern District of California 1 MOAB Investment Group, LLC v. Moreno, No. C14-0092EMC, 2014 WL 523092 at *1 (N.D. 12 Cal., Feb. 6, 2014); Maxwell Real Estate Investment LLC v. Bracho, No. C12-02774RMW, 2012 13 WL 2906762 at *1 (N.D. Cal., July 13, 2012). 14 15 The removal of this case was improper. Defendants and Lopez are advised that their repeated attempts to remove this matter may result in sanctions. 16 Because the parties have yet to consent to the undersigned’s jurisdiction, this court 17 ORDERS the Clerk of the Court to reassign this case to a District Judge. The undersigned further 18 RECOMMENDS that plaintiff’s motion for remand be granted and that the newly assigned judge 19 remand the case to the Monterey County Superior Court. Any party may serve and file objections 20 to this Report and Recommendation within fourteen days after being served. 28 U.S.C. § 21 636(b)(1)(B), (C); Fed. R. Civ. P. 72. 22 Dated: May 9, 2017 23 24 HOWARD R. LLOYD United States Magistrate Judge 25 26 27 28 3 1 2 3 4 5 6 7 8 9 5:17-cv-02614-HRL Notice sent by U.S. Mail on 5/9/2017 to: T. Bob Uemura Attorney at Law 17 Winham Street Salinas, CA 93901 Sofia Vasquez 245 Sycamore Road Salinas, CA 93905 Leopoldo Cerritos 245 Sycamore Road Salinas, CA 93905 Lorena Urbina Lopez 245 Sycamore Road Salinas, CA 93905 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

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