Montemar Properties, LLC v. Barry et al
Filing
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ORDER for Reassignment to a District Judge; ORDER granting 2 , 3 Applications to Proceed In Forma Pauperis; REPORT AND RECOMMENDATION re Remand. Signed by Magistrate Judge Howard R. Lloyd on 10/26/2017. (hrllc2S, COURT STAFF) (Filed on 10/26/2017)
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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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MONTEMAR PROPERTIES, LLC,
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Plaintiff,
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v.
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WARREN BARRY, et al.,
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Defendants.
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Case No.5:17-cv-06092-HRL
ORDER FOR REASSIGNMENT TO A
DISTRICT JUDGE
ORDER RE IFP APPLICATIONS
REPORT AND RECOMMENDATION
RE REMAND
Re: Dkt. Nos. 2, 3
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Defendants Warren and Claudia Barry removed this unlawful detainer action from the
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Santa Clara County Superior Court.1 They also seek leave to proceed in forma pauperis (IFP).
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For the reasons stated below, the undersigned grants the IFP applications, and recommends that
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this matter be remanded to the state court for lack of federal subject matter jurisdiction.
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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This is one of two unlawful detainer actions removed here concerning the same property. The
other is 5:17-cv-06090 HRL Wells Fargo Bank, N.A. v. Barry, et al.
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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). Defendants’ IFP applications are granted. Even so,
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defendants cannot proceed in this court because there is no federal subject matter jurisdiction over
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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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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, defendants assert that plaintiff’s complaint “involves disputes”
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under the Federal Fair Debt Collection Practices Act and the Fair Credit Reporting Act. (Dkt. 1 at
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3). However, plaintiff’s complaint presents a claim arising only under state law. It does not allege
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any federal claims whatsoever. Moreover, allegations in a removal notice or in a response to the
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complaint cannot provide this court with federal question jurisdiction.
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Although defendants do not assert diversity jurisdiction, the undersigned finds that there is
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no basis for it in any event. Federal district courts have jurisdiction over civil actions in which the
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matter in controversy exceeds the sum or value of $75,000 (exclusive of interest and costs) and is
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between citizens of different states. 28 U.S.C. § 1332. As California defendants, the Barrys
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cannot remove this case on the basis of diversity. See 28 U.S.C. § 1441(b)(2) (stating that an
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action may not be removed on the basis of diversity “if any of the parties in interest properly
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joined and served as defendants is a citizen of the State in which such action is brought.”); see also
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Spencer v. U.S. Dist. Ct., 393 F.3d 867, 870 (9th Cir. 2004) (“It is thus clear that the presence of a
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local defendant at the time removal is sought bars removal.”). In any event, the complaint
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indicates that the amount demanded does not exceed $10,000. And, unlawful detainer actions
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involve the right to possession alone, not title to the property. So, the fact that the subject property
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may be worth more than $75,000 is irrelevant. MOAB Investment Group, LLC v. Moreno, No.
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C14-0092 EMC, 2014 WL 523092 at *1 (N.D. Cal., Feb. 6, 2014); Maxwell Real Estate
Investment LLC v. Bracho, No. C12-02774 RMW, 2012 WL 2906762 at *1 (N.D. Cal., July 13,
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United States District Court
Northern District of California
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2012).
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Based on the foregoing, the removal of this case was improper. Defendants are advised
that future attempts to remove this matter may result in sanctions.
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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 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 26, 2017
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HOWARD R. LLOYD
United States Magistrate Judge
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