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Deutsche Bank National Trust Co. v. Miller

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA


October 29, 2010

DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE PLAINTIFF,
v.
BRAD G. MILLER ET AL., DEFENDANTS.

The opinion of the court was delivered by: James V. Selna United States District Judge

Order of Remand

On October 1, 2010 defendant Brad B. Miller ("Miller") removed Case No. 30-2010-003533264 from the Superior Court of the State of California for the County of Orange. Deutsche Bank National Trust Company v. Miller, Case No. 10-1487 JVS (MLGx) ("Removal I"). Because there was no apparent basis for jurisdiction, the Court issued an order to show cause (Removal I, Docket No. 3), and remanded the case when Miller could not establish a basis for jurisdiction. (Removal I, Docket No. 5.)

Three days after the remand in Removal I, Miller filed the present Notice of Removal ("Removal II") seeking to remove the very same action. In contrast to his last Notice of Removal, he cites an explicit basis for removal: 28 U.S.C. § 1334(b). That section relates to bankruptcy:

b) Except as provided in subsection (e)(2), and notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.

(28 U.S.C. § 1334(b); emphasis supplied.) The unlawful detainer action filed in the Superior Court is no a bankruptcy case nor is it related to a bankruptcy case. There is no basis to invoke this Court's jurisdiction on the basis of Section 1334(b).

For the reasons set forth in this Court's Order remanding the case in Removal I, there is no other basis for jurisdiction. (Removal I, Docket No 5, a copy of which is attached hereto as Exhibit A.)

Miller is admonished that he may be subject to sanctions if he makes any further frivolous attempts to initiate proceedings in this Court.

The case is remanded the Superior Court of the State of California for the County of Orange for lack of jurisdiction.

EXHIBIT A

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

Deutsche Bank National Trust Company as Trustee Plaintiff, v. Brad G. Miller et al., Defendants.

Case No. 10-1487 JVS (MLGx)

Order of Remand

Defendant Brad B. Miller ("Miller") removed this action from Superior Court of the State of California for the County of Orange. No explicit basis for jurisdiction was asserted, although Miller claims there have been violations of federal law in the underlying transactions. (Notice of Removal, p. 9.) The Court ordered Miller to show cause in writing why the case should not be remanded to the Superior Court of the State of California for the County of Orange for lack of jurisdiction. (Docket No. 3.) The Court has now reviewed Miller's response.

Miller ignores a fundamental premise of removal jurisdiction. The basis for federal jurisdiction must appear in the state court complaint. Federal defenses or federal counterclaims provide no basis to remove an action which does not otherwise establish federal jurisdiction. See Franchise Tax Board of State of Cal. v. Construction Laborers Vacation Trust, 643 U.S. 1, 10 (1983); Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 326-27 (5th Cir. 1998).

The underlying action is an unlawful detainer action. No federal claims are asserted (28 U.S.C. § 1331). Miller makes no argument that diversity jurisdiction lies (28 U.S.C. § 1332(a)(1)), and in any event, as a California resident defendant, Miller could not remove the action. 28 U.S.C. § 1441(b).

The case is remanded the Superior Court of the State of California for the County of Orange for lack of jurisdiction.

James V. Selna United States District Judge

20101029

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