Compass Bank v. Goble et al
Filing
6
ORDER granting 3 Motion to Remand to State Court: this matter is REMANDED to the Superior Court of California for the County of San Diego. The Clerk shall close the file. Signed by Judge Janis L. Sammartino on 3/1/12. (All non-registered users served via U.S. Mail Service)(lmt)(cc: Superior Court)
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
SOUTHERN DISTRICT OF CALIFORNIA
9
10
COMPASS BANK,
11
CASE NO. 11-CV-2916 JLS (BLM)
Plaintiff,
ORDER: REMANDING CASE
vs.
12
13
KENT ALLEN GOBLE, JULIE ACEVEDO,
Does 1 through X, inclusive,
14
Defendant.
15
16
Plaintiff Compass Bank filed an unlawful detainer action against Defendants Kent Allen
17
Goble and Does 1 through X in the Superior Court of California for the County of San Diego on
18
September 22, 2011. (See Notice of Removal Ex. A, ECF No. 1-1 (“UD Compl.”)) Apparently,
19
Defendant Julie Acevedo intervened in the state court action as current owner of the premises at
20
issue. (Id. at 1.) On December 14, 2011, Defendant Julie Acevedo, proceeding pro se, removed
21
the case to this Court. Plaintiff subsequently filed a motion to remand, set for hearing on March 8,
22
2012 (Mot. to Remand, ECF No. 3), and an ex parte application to shorten time for ruling on the
23
motion to remand (Mot. to Shorten Time, ECF No. 4.) No opposition has been filed.1 For the
24
25
1
26
27
28
Any opposition to Plaintiff’s motion to remand was due on February 23, 2012 under Civil
Local Rule 7.1(e)(2). The Ninth Circuit has held that a district court may properly construe the failure
of an opposing party to timely respond as consent to the granting of that motion. Ghazali v. Moran,
467 F.3d 52, 53 (9th Cir. 1999) (per curiam) (affirming dismissal for failure to timely file opposition
papers); see also Bank of N.Y. Mellon v. Crandall, 2012 U.S. Dist. LEXIS 4561 at *3 (S.D. Cal. Jan.
13, 2012) (granting motion to remand as unopposed where the defendant failed to file an opposition
as required by Civil Local Rule 7.1(e)(2)).
-1-
11cv2916
1
following reasons, the Court finds that Defendant’s removal of this case was improper and
2
remands the case to the Superior Court of California for the County of San Diego.
3
In cases “brought in a State court of which the district courts of the United States have
4
original jurisdiction,” a defendant may remove the case to federal court. 28 U.S.C. §1441(a).
5
However, courts “strictly construe the removal statute against removal jurisdiction.” Gaus v.
6
Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citations omitted). Therefore, “[f]ederal
7
jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.”
8
Id. (citing Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)). The
9
removing party bears the burden of establishing that federal subject matter jurisdiction exists.
10
Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). The district court’s subject
11
matter jurisdiction encompasses federal question jurisdiction and diversity jurisdiction, and the
12
Court discusses each of these in turn.
13
To determine whether federal question jurisdiction exists, the Court looks to the plaintiff’s
14
complaint. Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 830 (2002).
15
The Court does not consider the defendant’s answer, defenses, or counterclaims. Id. at 831. In
16
this case, Plaintiff’s underlying claim is an unlawful detainer action filed under California law.
17
However, Defendant argues that California law is preempted by new federal legislation, the
18
Protecting Tenants at Foreclosure Act, 12 U.S.C. § 5220 (“PTFA”) which requires a 90-day notice
19
of termination rather than the three-day notice provided by California Code of Civil Procedure
20
section 1161. (Notice of Removal 2-5.) According to Defendant, the PTFA is not a defense to an
21
unlawful detainer action brought under California law; rather, the PTFA should have been the
22
basis for Plaintiff’s action to eject a tenant. (Id. at 5.)
23
Defendant’s attempt to reframe the underlying complaint is unavailing. As Defendant
24
indicates, the PTFA provides certain protections to tenants who reside in properties subject to
25
foreclosure. However, as stated above, it is well-established that the existence of a federal defense
26
does not confer federal question jurisdiction. The gravamen of Plaintiff’s complaint is a state law
27
claim for unlawful detainer. The Court agrees with other California district courts, which have
28
concluded that the PTFA does not confer federal jurisdiction in an unlawful detainer action
-2-
11cv2916
1
brought under California law. See, e.g., Bank of N.Y. Mellon v. Crandall, 2012 U.S. Dist. LEXIS
2
4561 at *4-5 (S.D. Cal. Jan. 13, 2012) (finding that PTFA did not confer federal subject matter
3
jurisdiction in an unlawful detainer action); Aurora Loan Serv., LLC v. Montoya, 2011 U.S Dist.
4
LEXIS 129905 at *3 (E.D. Cal. Nov. 9, 2011); Fannie Mae v. Rhoades, 2011 U.S. Dist. LEXIS
5
42712 at *3 (S.D. Cal. April 20, 2011) (same); SD Coastline LP v. Buck, 2010 U.S. Dist. LEXIS
6
123124 at *3 (S.D. Cal. Nov. 19, 2010) (same). Instead, the PTFA is best characterized as a
7
defense or potential counterclaim to an unlawful detainer action.
8
9
There is also no basis for diversity jurisdiction in this case.2 Diversity jurisdiction requires
that Plaintiff and Defendant be of different citizenship and that the amount in controversy exceed
10
$75,000. 28 U.S.C. § 1332. The caption of Plaintiff’s complaint indicates that the amount
11
demanded “does not exceed $10,000.” (UD Compl. 1.) Because at least one of the two
12
requirements for diversity jurisdiction is not met, there is no diversity jurisdiction basis for
13
removal.
14
For these reasons, Defendant fails to establish that this Court has subject matter jurisdiction
15
over the matter. Thus, this matter is REMANDED to the Superior Court of California for the
16
County of San Diego. The Clerk shall close the file.
17
18
IT IS SO ORDERED.
DATED: March 1, 2012
19
Honorable Janis L. Sammartino
United States District Judge
20
21
22
23
24
25
26
27
28
2
Defendant does not appear to have asserted diversity jurisdiction as a basis for removal.
Plaintiff states that “Defendants have already attempted to invoke diversity jurisdiction twice which
resulted in remand with prejudice,” although evidence of these previous attempts is not currently
before the Court. (Mot. to Remand 2.) Thus, the Court addresses diversity jurisdiction here as well.
-3-
11cv2916
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?