U.S. Bank N.A. v. McCallum

Filing 4

ORDER: Remanding Action to State Court; and Denying as Moot 2 Motion for Leave to Proceed in forma pauperis. Based on the foregoing stated herein, the Court lack subject matter jurisdiction over this matter and therefore remands the case to State Court. Defendant's motion to proceed in forma pauperis is denied as moot. Signed by Judge Michael M. Anello on 11/4/2011. (Certified Copy of Order sent to Superior Court) (All non-registered users served via U.S. Mail Service)(leh)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12
13
14

U.S. BANK N.A. AS TRUSTEE ON
BEHALF OF ADJUSTABLE RATE
MORTGAGE TRUST 2005-11
ADJUSTABLE RATE MORTGAGE
BACKED PASS-THROUGH
CERTIFICATES, SERIES 2005-11,

CASE NO. 11cv2566 MMA (WVG)

Plaintiff,

15
vs.

ORDER SUA SPONTE REMANDING
ACTION TO STATE COURT;

16
17
18

DENYING MOTION TO PROCEED
IN FORMA PAUPERIS AS MOOT

JOHN McCALLUM; DOES I through X,
Inclusive,

[Doc. No. 2]

Defendants.

19
20

On November 3 2011, Defendant John McCallum filed a notice of removal of an unlawful

21

detainer action brought by Plaintiff U.S. Bank N.A. as Trustee on behalf of Adjustable Rate

22

Mortgage Trust 2005-11 Adjustable Rate Mortgage Backed Pass-Through Certificates, Series 2005-

23

11. [Doc. No. 1.] After reviewing Defendant’s notice of removal and the underlying complaint, the

24

Court finds that it lacks subject matter jurisdiction over this case. Therefore, for the following

25

reasons, the Court REMANDS this action to state court.

26
27
28

///
-1-

11cv2566

1

DISCUSSION

2

Generally, subject matter jurisdiction is based on the presence of a federal question, see 28

3

U.S.C. § 1331, or on complete diversity between the parties, see 28 U.S.C. § 1332. If at any time

4

before the entry of final judgment it appears that the Court lacks subject matter jurisdiction over a

5

case removed from state court, it must remand the action to state court. See 28 U.S.C. § 1447(c);

6

Int’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72 (1991). There is a “strong

7

presumption” against removal jurisdiction, and the party seeking removal always has the burden of

8

establishing that removal is proper. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). If there

9

is any doubt as to the propriety of removal, federal jurisdiction must be rejected. Id. at 567.

10

Defendant does not clearly allege the statutory basis for removal in his notice of removal.

11

However, the Court sua sponte must consider whether jurisdiction exists. See Valdez v. Allstate Ins.

12

Co., 372 F.3d 1115, 1116 (9th Cir. 2004) (observing that a court is required to consider sua sponte

13

whether it has subject matter jurisdiction). First, federal question jurisdiction is absent because no

14

“federal question is presented on the face of plaintiff’s properly pleaded complaint.” Caterpillar,

15

Inc. v. Williams, 482 U.S. 386, 392 (1987). Here, Plaintiff’s complaint asserts a single claim for

16

unlawful detainer, a cause of action that is purely a matter of state law. See Fannie Mae v. Suarez,

17

2011 U.S. Dist. LEXIS 82300, at *6 (E.D. Cal. July 27, 2011) (“Unlawful detainer actions are

18

strictly within the province of state court”); Deutsche Bank Nat’l Trust Co v. Leonardo, 2011 U.S.

19

Dist. LEXIS 83854, at *2 (C.D. Cal. Aug. 1, 2011) (“the complaint only asserts a claim for unlawful

20

detainer, a cause of action that is purely a matter of state law”). Thus, although Defendant asserts

21

this action “implicates constitutional repugnancy with statutory violations including but not limited

22

to, securities law, fair debt collection practices, unfair and deceptive practices, conspiracy against

23

rights, [and] civil rights violations,” the face of the complaint makes clear that no basis for federal

24

question jurisdiction exists. [Doc. No. 1, p.3 ¶11.]

25

In addition, diversity jurisdiction is absent. For a federal court to exercise diversity

26

jurisdiction, there must be “complete” diversity between the parties and the amount in controversy

27

requirement must be met. See 28 U.S.C. § 1332(a). Defendant’s notice of removal fails to establish

28

Plaintiff’s state of incorporation or principal place of business. Indeed, Defendant asserts “[t]his
-2-

11cv2566

1

Plaintiff is a fiction. Its citizen ship [sic] is unknown.” [Doc. No. 1, p.1 ¶2.] Also, from the face of

2

Plaintiff’s complaint, it is apparent that Defendant will be unable to prove that the amount in

3

controversy exceeds $75,000, exclusive of attorneys fees and costs, as Plaintiff seeks less than

4

$10,000. Thus, diversity jurisdiction is lacking.

5

CONCLUSION

6

Based on the foregoing, the Court lacks subject matter jurisdiction over this matter and

7

therefore REMANDS the case to state court. Defendant’s motion to proceed in forma pauperis

8

[Doc. No. 2] is DENIED AS MOOT.

9

IT IS SO ORDERED.

10
11
12

DATED: November 4, 2011
Hon. Michael M. Anello
United States District Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-

11cv2566