Federal National Mortgage Association v. Plough

Filing 3

ORDER granting ECF No. 1 IFP application; directing Clerk to file Defendant's Notice of Removal.REPORT AND RECOMMENDATION that this case be remanded to state court. Objections to R&R due by 8/10/2017. Signed by Magistrate Judge Carl W. Hoffman on 7/27/2017. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FEDERAL NATIONAL MORTGAGE
ASSOCIATION,

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Plaintiff,
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v.
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CHANDRA PLOUGH,
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Defendant.
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_______________________________________ )

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Case No. 2:17-cv-01996-MMD-CWH

REPORT & RECOMMENDATION

Presently before the Court is pro se Defendant Chandra Plough’s application for leave to

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proceed in forma pauperis (ECF No. 1), filed on July 21, 2017. Included in Defendant’s motion is

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her notice of removal (ECF No. 1-1).

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I.

In Forma Pauperis Application

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Plaintiff has submitted the declaration required by 28 U.S.C. § 1915(a) showing an inability

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to prepay fees and costs or give security for them. The Court will therefore grant Plaintiff’s request

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to proceed in forma pauperis.

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II.

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Removal
Plaintiff seeks to remove this case from state court under 28 U.S.C. § 1441, which allows

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civil actions brought in a state court to be removed to federal court upon establishing one of the

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prescribed bases for removal. One such basis is federal question jurisdiction, which allows for

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removal for claims arising under the Constitution, laws, or treaties of the United States. 28 U.S.C.

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§§ 1331, 1441. However, certain restrictions apply to removal for federal question jurisdiction.

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Specifically, federal question jurisdiction requires that a federal question of law must be presented on

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the face of the plaintiff’s complaint. Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475 (1998).

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This means that the relevance of a federal question to the defense of a claim does not satisfy the

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requirements for removal under 28 U.S.C. § 1441. This rule is applied strictly, so that “a case may

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not be removed to federal court on the basis of a federal defense, ... even if the defense is anticipated

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in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly
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at issue in the case.” Franchise Tax Bd. Of Cal. V. Construction Laborers Vacation Trust for

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Southern Cal., 463 U.S. 1, 14 (1983).

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Here, Defendant seeks removal on the basis of a number of federal issues she seeks to raise

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as defenses to an action brought against her in a Nevada court for unlawful detainer. The complaint

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makes no reference to any federal claim. As noted above, federal defenses cannot support removal,

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and Defendant does not claim removal on any other basis. The Court will therefore recommend the

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case be remanded to state court.

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IT IS THEREFORE ORDERED that Defendant’s application for leave to proceed in forma
pauperis (ECF No. 1) is granted. Defendant is permitted to maintain this action to conclusion

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without the necessity of prepayment of any additional fees or costs or the giving of a security for fees

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or costs. This order does not extend to the issuance of subpoenas at government expense.

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IT IS FURTHER ORDERED that the Clerk of Court must file Defendant’s notice of removal
(ECF No. 1-1).

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IT FURTHER RECOMMENDED that this case should be remanded to state court.

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DATED: July 27, 2017

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_________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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NOTICE

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This report and recommendation is submitted to the United States district judge assigned to

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this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation may

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file a written objection supported by points and authorities within fourteen days of being served with

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this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely objection may waive

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the right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

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