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GMAC Mortgage, LLC v. Bruce

August 4, 2010

GMAC MORTGAGE, LLC FKA GMAC MORTGAGE CORPORATION, PLAINTIFF,
v.
NICOLETTE BRUCE, MARK A. BRUCE, AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATION

Presently before the court is plaintiff's motion for an order remanding this unlawful detainer action to the Superior Court of the State of California, Sacramento County ("Superior Court"). (Dkt. No. 7.) Plaintiff also seeks sanctions against defendants for removing this case to federal court "for purposes of delay and without proper foundation." Having concluded that oral argument would not assist the court, the undersigned hereby submits plaintiff's motion on the briefs and record on file. See E. Dist. Local Rule 230(g). For the reasons that follow, the undersigned will recommend that plaintiff's motion be granted, but that plaintiff's request for sanctions be denied.

I. BACKGROUND

Plaintiff is the purchaser of real property at a trustee's sale, which is alleged to have occurred in accordance with California state law. (Verified Compl. for Unlawful Detainer ("Complaint") ¶ 8, attached to Notice of Removal, Dkt. No. 1.) Defendants's Notice of Removal alleges that plaintiff is a citizen of the State of Delaware. (Notice of Removal at 2, Dkt. No. 1.) Defendants are individuals who are alleged to be holdover occupants and previous owners of the subject property. (Compl. ¶¶ 5, 9-10.) Plaintiffs are residents of the State of California. (Notice of Removal at 2.)

Following the trustee's sale and perfection of plaintiff's title to the subject property, plaintiff alleges that it served defendants with a three-day "Notice to Quit," which required defendants to, among other things, deliver possession of the premises to plaintiff. (Compl. ¶ 9.) Plaintiff alleges that defendants remain in possession of the property. (Id. ¶ 10.)

On April 15, 2010, plaintiff filed a single-claim Verified Complaint for Unlawful Detainer in the Superior Court, seeking: (1) restitution and possession of the property in question, (2) damages at a rate of $90.00 per day from April 13, 2010 until the date of judgment, and (3) an order to terminate any existing lease that permits defendants to occupy the property. (Compl. at 3.) The caption of the Complaint states the following: "DEMAND IS LESS THAN $10,000.00 (LIMITED CIVIL CASE)." (Id. at 1.) On April 20, 2010, defendants removed the unlawful detainer action to this court on the grounds that this court had jurisdiction over the action based on federal question jurisdiction, diversity jurisdiction, and jurisdiction based on the National Bank Act.*fn1 (See Notice of Removal, Dkt. No. 1.)

On July 14, 2010, plaintiff filed the pending motion for a remand order.*fn2 (Dkt. No. 7.) Defendants filed a timely written opposition, which argued only that plaintiff's motion for remand was untimely under 28 U.S.C. § 1447(c).*fn3 (Dkt. No. 11.)

II. DISCUSSION

A. Motion for Remand

As noted above, defendants removed this action to federal court on the basis of this court's federal question jurisdiction, diversity jurisdiction, and jurisdiction premised on the National Bank Act, 12 U.S.C. §§ 38 et seq. For the reasons that follow, none of these supplies a proper basis for removal.

In relevant part, the federal removal statute provides:

(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. . . .

(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

28 U.S.C. § 1441(a), (b). "The defendant bears the burden of establishing that removal is proper." Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). "The removal statute is strictly construed against removal jurisdiction," id., and removal jurisdiction "'must be rejected if there is any doubt as to the right of removal in the first instance.'" Geographic Expeditions, Inc. v. Estate of Lhotka, ...


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