Bank of New York Mellon v. Kinser et al

Filing 6

ORDER (Re Doc. 3 ): Pursuant to 28 U.S.C. Section 1447(c), this action is REMANDED for lack of subject-matter jurisdiction to the Superior Court of California for the County of San Diego, where it was originally filed and assigned case number 37-2012-00033870-CL-UD-EC. Signed by Judge William Q. Hayes on 7/17/2012. (All non-registered users served via U.S. Mail Service; certified copy: Calif. Superior Court, County of San Diego, East County Regional Location.) (mdc)

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FI LED

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12 JUL 17 PH~: 01

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ORDER

Plaintiff,
vs.
RUTH KINSER,
Defendant.

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CASE NO. 12cv01l68 WQH BGS

THE BANK OF NEW YORK MELLON
AS TRUSTEE FOR THE CERTIFICATE
HOLDERS OF THE CWMBS INC., CHL
MORTGAGE PASS-THROUGH TRUST
2007-HY6 FORMERLY KNOWN AS
THE BANK OF NEW YORK,

HAYES, Judge:
On February 22, 2012, Plaintiffinitiated this action by filing a Complaint for Unlawful

17 Detainer in the Superior Court of California for the County of San Diego, where it was
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assigned case number 37-20 12-00033870-CL-UD-EC. (ECFNo.l at 18-22). The Complaint

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alleges that Plaintiff is entitled to possession of real property located at 3547 Hartzel Drive,

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Spring Valley, California. Id. The Complaint alleges that Plaintiff served Defendant with

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written notice requiring her to vacate the property and that Defendant failed to vacate the

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property. Id. The Complaint alleges a single claim for unlawful detainer under California law

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seeking possession of the property and damages that "[do] not exceed $10,000." Id.

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On May 14, 2012, Defendant, proceeding pro se, removed the action to this Court.

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(ECFNo. 1). The Notice of Removal alleges that federal question jurisdiction exists because

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"Defendant filed a demurrer to the Complaint based on a defective notice, i.e., the Notice to

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Occupants to Vacate Premises," alleging that the Notice "failed to comply with The Protecting

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Tenants at Foreclosure Act (12 U.S.C. § 5220)." Id. at 3. According to Defendant, "[t]ederal

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12cv01168 WQH BGS

1 question jurisdiction exists because Defendant's demurrer ... depend[ed] on the determination
2 of Defendant's rights and Plaintiffs duties under federal law." Id.
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On May 31, 2012, Plaintiff filed a Motion to Remand to State Court, seeking remand

4 to state court on the grounds that this Court lacks subject matter jurisdiction over the matter.
5 (ECF No.3). Defendant has not filed an opposition to the Motion to Remand.
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A defendant may remove a civil action from state court to federal court based on either

7 federal question or diversity jurisdiction. See 28 U.S.C. § 1441. "The presence or absence of
8 federal-question jurisdiction is governed by the well-pleaded complaint rule, which provides
9 that federal jurisdiction exists only when a federal question is presented on the face of the
10 plaintiff s properly pleaded complaint.. .. [T]he existence ofa defense based upon federal law
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is insufficient to support jurisdiction." Wayne v. DHL Worldwide Express, 294 F.3d 1179,

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1183 (9th Cir. 2002) (quotation and citation omitted), "The removal statute is strictly

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construed, and any doubt about the right of removal requires resolution in favor of remand."

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Moore-Thomas v. Alaska Airline, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citation omitted).

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The presumption against removal means that "the defendant always has the burden of

16 establishing that removal is proper." Id.
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In this case, the sole basis for federal jurisdiction referenced in the Notice of Removal

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is that Defendant has a defense to the Complaint based upon Plaintiff's alleged failure to

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comply with a federal statute. "[T]he existence of a defense based upon federal law is

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insufficient to support jurisdiction." Wayne, 294 F.3d at 1183. The Notice ofRemoval does

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not adequately state a basis for federal subject-matter jurisdiction.

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Pursuantto 28 U.S.C. § 1447(c), this action is REMANDED forlackofsubject-matter

23 jurisdiction to the Superior Court of California for the County of San Diego, where it was
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originally filed and assigned case number 37-2012-00033870-CL-UD-EC.
IT IS SO ORDERED.

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27 DATED:

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12cvOl168 WQH BOS