Chandler v. NDEX WEST, LLC et al

Filing 55

ORDER. IT IS HEREBY ORDERED that plaintiff's 15 motion to remand is DENIED. Signed by Judge Larry R. Hicks on 5/3/2011. (Copies have been distributed pursuant to the NEF - KO)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JACQUIE CHANDLER

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Plaintiff,

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v.

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INDYMAC BANK, F.S.B.; et al.,

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Defendants.

3:10-cv-0769-LRH-RAM
ORDER

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Before the court is plaintiff Jacquie Chandler’s (“Chandler”) motion to remand filed on

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January 7, 2010. Doc. #15.1 Defendants filed oppositions (Doc. ##22, 26) to which Chandler

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replied (Doc. #33).

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I.

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Facts and Procedural History
In February, 2006, Chandler purchased real property through a mortgage note and deed of

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trust originated and executed by defendant Indymac Bank, F.S.B. (“Indymac”). Eventually,

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Chandler defaulted on the mortgage note and defendants initiated non-judicial foreclosure

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proceedings.

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Subsequently, Chandler filed a complaint in state court against defendants alleging six

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causes of action: (1) violation of state foreclosure laws; (2) fraud in the inducement; (3) unjust

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Refers to the court’s docket entry number.

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enrichment; (4) breach of good faith and fair dealing; (5) slander of title; and (6) abuse of process.

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Doc. #1, Exhibit A. Defendants removed the action to federal court based upon federal question

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and diversity jurisdiction. Doc. #1. Thereafter, Chandler filed the present motion to remand.

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Doc. #15.

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II.

Legal Standard

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Under 28 U.S.C. § 1441, “any civil action brought in a State court of which the district

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courts of the United States have original jurisdiction, may be removed by the defendant or the

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defendants, to the district court of the United States for the district and division embracing the

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place where such action is pending." 28 U.S.C. § 1441(a).

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Removal of a case to a United States district court may be challenged by motion. 28 U.S.C.

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§ 1441(c). A federal court must remand a matter if there is a lack of jurisdiction. Id. Removal

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statutes are construed restrictively and in favor of remanding a case to state court. See Shamrock

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Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Gaus v. Miles, Inc., 980 F.2d 564, 566

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(9th Cir. 1992). On a motion to remand, the removing defendant faces a strong presumption against

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removal, and bears the burden of establishing that removal is proper. Gaus, 980 F.2d at 566-67;

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Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403-04 (9th Cir. 1996).

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III.

Discussion

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A. Federal Question Jurisdiction

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A case may be removed to federal court if the action arises under federal law. See 28 U.S.C.

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§ 1331; 28 U.S.C. § 1441. A case arises under federal law if the complaint establishes either that

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federal law created the cause of action, or that the plaintiff’s right to relief “requires resolution of a

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substantial question of federal law.” Franchise Tax Bd. of Cal v. Constr. Laborers Vacation Trust

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for S. Cal., 463 U.S. 1, 13 (1983); see also, Caterpillar Inc. v. Williams, 482 U.S. 386, 382 (1987).

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Chandler’s complaint alleges six causes of action. Doc. #1, Exhibit A. Based on the face of

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the complaint, Chandler alleges only state law claims insufficient to grant federal question
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jurisdiction. Therefore, the court cannot exercise federal question jurisdiction.

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B. Diversity Jurisdiction

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A district court has original jurisdiction over civil actions where the suit is between citizens

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of different states and the amount in controversy, exclusive of interest and costs, exceeds $75,000.

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28 U.S.C. § 1332(a). Further, an action based on diversity jurisdiction is “removable only if none of

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the parties in interest properly joined and served as defendants is a citizen of the state in which such

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action is brought.” 28 U.S.C. § 1441(b). Here, defendants argue that there is complete diversity

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between the parties because non-diverse defendants Ticor Title and Stanley Silva are fraudulently

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joined defendants whose residencies cannot be used to defeat the exercise of diversity jurisdiction.

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See Doc. ##22, 26.

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A fraudulently joined defendant does not “defeat removal on diversity grounds.” Ritchey v.

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Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998). Fraudulent joinder “occurs when a plaintiff

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fails to state a cause of action against a resident defendant, and the failure is obvious according to

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the settled rules of the state.” Ritchey, 139 F.3d at 1318; see also McCabe v. General Foods Corp.,

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811 F.2d 1336, 1339 (9th Cir. 1987); Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416,

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1426-27 (9th Cir. 1989); Gasnik v. State Farm Ins. Co., 825 F.Supp. 245, 247 (E.D. Cal. 1992). In

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determining whether a cause of action is stated against a non-diverse defendant, courts look only to

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a plaintiff’s pleadings. Gardner v. UICI, 508 F.3d 559, 561 n.3 (9th Cir. 2007).

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Nevada is a notice-pleading jurisdiction which liberally construes pleadings. Chavez v.

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Robberson Steel Co., 584 P.2d 159, 160 (Nev. 1978). The allegations of a complaint are sufficient

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to assert a claim for relief when the allegations “give fair notice of the nature and basis” for a claim.

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Vacation Village, Inc. v. Hitachi Am., Ltd., 874 P.2d 744, 746 (Nev. 1994).

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In her complaint, Chandler’s only allegations against Ticor Title and Stanley Silva are that

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they signed and recorded the notice of default with the recorder’s office. See Doc. #1, Exhibit A.

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The court has reviewed the documents and pleadings on file in this matter and finds that Chandler

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has failed to sufficiently assert any claims for relief against these defendants based solely on the

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fact that they recorded the underlying notice of default. Based on the allegations in the complaint,

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the court finds that non-diverse defendants Ticor Title and Stanley Silva are fraudulently joined

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defendants whose citizenship does not defeat the exercise of diversity jurisdiction. Accordingly, the

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court finds that there is complete diversity between the parties and that the exercise of diversity

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jurisdiction is appropriate.

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IT IS THEREFORE ORDERED that plaintiff’s motion to remand (Doc. #15) is DENIED.

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IT IS SO ORDERED.

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DATED this 3rd day of May, 2011.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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