Montemar Properties, LLC v. Barry et al

Filing 5

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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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 MONTEMAR PROPERTIES, LLC, 12 Plaintiff, 13 v. 14 WARREN BARRY, et al., 15 Defendants. 16 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 17 Defendants Warren and Claudia Barry removed this unlawful detainer action from the 18 19 Santa Clara County Superior Court.1 They also seek leave to proceed in forma pauperis (IFP). 20 For the reasons stated below, the undersigned grants the IFP applications, and recommends that 21 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 22 23 court is satisfied that the applicant cannot pay the requisite filing fees. 28 U.S.C § 1915(a)(1). In 24 evaluating such an application, the court should “gran[t] or den[y] IFP status based on the 25 applicant’s financial resources alone and then independently determin[e] whether to dismiss the 26 complaint on the grounds that it is frivolous.” Franklin v. Murphy, 745 F.2d 1221, 1226-27 n.5 27 1 28 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. 1 (9th Cir. 1984). A court may dismiss a case filed without the payment of the filing fee whenever it 2 determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief 3 may be granted; or (iii) seeks monetary relief against a defendant who is immune from such 4 relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). Defendants’ IFP applications are granted. Even so, 5 defendants cannot proceed in this court because there is no federal subject matter jurisdiction over 6 this matter. 7 Removal to federal court is proper where the federal court would have original subject 8 matter jurisdiction over the complaint. 28 U.S.C. § 1441. The removal statutes are strictly 9 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 11 United States District Court Northern District of California 10 v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). Additionally, the court has a continuing duty to 12 determine whether it has subject matter jurisdiction. Fed. R. Civ. P. 12(h). A case must be 13 remanded to the state court if it appears at any time before final judgment that the court lacks 14 subject matter jurisdiction. 28 U.S.C. § 1447(c). 15 Defendants fail to show that removal is proper based on any federal law. Federal courts 16 have original jurisdiction over civil actions “arising under the Constitution, laws, or treaties of the 17 United States.” 28 U.S.C. § 1331. A claim “arises under” federal law if, based on the “well- 18 pleaded complaint rule,” the plaintiff alleges a federal claim for relief. Vaden v. Discovery Bank, 19 129 S. Ct. 1262, 1272 (2009). Defenses and counterclaims asserting a federal question do not 20 satisfy this requirement. Id. Here, defendants assert that plaintiff’s complaint “involves disputes” 21 under the Federal Fair Debt Collection Practices Act and the Fair Credit Reporting Act. (Dkt. 1 at 22 3). However, plaintiff’s complaint presents a claim arising only under state law. It does not allege 23 any federal claims whatsoever. Moreover, allegations in a removal notice or in a response to the 24 complaint cannot provide this court with federal question jurisdiction. 25 Although defendants do not assert diversity jurisdiction, the undersigned finds that there is 26 no basis for it in any event. Federal district courts have jurisdiction over civil actions in which the 27 matter in controversy exceeds the sum or value of $75,000 (exclusive of interest and costs) and is 28 between citizens of different states. 28 U.S.C. § 1332. As California defendants, the Barrys 2 1 cannot remove this case on the basis of diversity. See 28 U.S.C. § 1441(b)(2) (stating that an 2 action may not be removed on the basis of diversity “if any of the parties in interest properly 3 joined and served as defendants is a citizen of the State in which such action is brought.”); see also 4 Spencer v. U.S. Dist. Ct., 393 F.3d 867, 870 (9th Cir. 2004) (“It is thus clear that the presence of a 5 local defendant at the time removal is sought bars removal.”). In any event, the complaint 6 indicates that the amount demanded does not exceed $10,000. And, unlawful detainer actions 7 involve the right to possession alone, not title to the property. So, the fact that the subject property 8 may be worth more than $75,000 is irrelevant. MOAB Investment Group, LLC v. Moreno, No. 9 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, 11 United States District Court Northern District of California 10 2012). 12 13 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. 14 Because the parties have yet to consent to the undersigned’s jurisdiction, this court 15 ORDERS the Clerk of the Court to reassign this case to a District Judge. The undersigned further 16 RECOMMENDS that the newly assigned judge remand the case to the Santa Clara County 17 Superior Court. Any party may serve and file objections to this Report and Recommendation 18 within fourteen days after being served. Fed. R. Civ. P. 72. 19 Dated: October 26, 2017 20 21 HOWARD R. LLOYD United States Magistrate Judge 22 23 24 25 26 27 28 3

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