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United States of America v. Maria Lopez

December 15, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MARIA LOPEZ, DEFENDANT.



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

FINDINGS AND RECOMMENDATIONS

Presently before the court is plaintiff's motion to remand this unlawful detainer action to the Superior Court of California for the County of Sacramento ("Superior Court").*fn1

(Dkt. No. 4.) The undersigned previously set a briefing schedule regarding plaintiff's motion (Dkt. Nos. 11, 13), and the parties have filed their respective briefs (Dkt. Nos. 14, 15). Because oral argument would not materially aid in the resolution of the pending motion, this matter is submitted on the briefs and record without a hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local Rul 230(g). Having reviewed the briefs and record in this case, the undersigned recommends that plaintiff's motion to remand be granted and that this case be remanded to the Superior Court because this court lacks subject matter jurisdiction over plaintiff's single claim for unlawful detainer.

I. BACKGROUND

On May 11, 2010, plaintiff filed a Verified Complaint for Unlawful Detainer ("Complaint") in the Superior Court seeking to recover possession of the property at issue, which is alleged to be situated in the County of Sacramento. (Compl. ¶ 2, attached to Notice of Removal, Dkt. No. 1 at 12-15.) The Complaint alleges that plaintiff purchased the subject property at a trustee's sale that occurred in accordance with California state law, that plaintiff's title pursuant to that sale has been perfected, and that plaintiff is entitled to immediate possession of the property. (Id. ¶¶ 4-5.) It further alleges that plaintiff provided defendant, who apparently had rented and still occupies the property, with notice to vacate the premises and deliver possession of the property within 90 days, and that defendant failed to vacate and deliver possession. (Id. ¶¶ 6-7 & Ex. B.) Through this action, plaintiff seeks: (1) restitution and possession of the subject property, and (2) damages at a rate of $30.00 per day from May 10, 2010, until the date of entry of judgment for each day that defendant remains in possession of the property.*fn2 (Compl. at 3.)

On August 12, 2010, defendant removed this matter to the United States District Court for the Northern District of California, and that district court eventually transferred the case to this district. (Dkt. Nos. 1, 5.) Defendant removed this case pursuant to 28 U.S.C. § 1446(a), and asserted that this court has subject matter jurisdiction over plaintiff's claims pursuant to, in part, 28 U.S.C § 1331. (Notice of Removal at 1.) Specifically, defendant asserts that this court has federal question jurisdiction based on the "Protecting Tenants at Foreclosure Act of 2009," and contends that plaintiff "failed to provide the defendant with a 90 day notice to quit" that is required by that legislation. (See Notice of Removal at 2-3.) Defendant's Notice of Removal also asserts, in passing and without explanation, that "[t]his action is a civil action of which this Court has original jurisdiction under 28 U.S.C. § 1332(c)(1)."*fn3 (Notice of Removal at 7.) The Notice of Removal contains no specific allegations in support of defendant's claim that diversity jurisdiction exists pursuant to 28 U.S.C. § 1332.

On August 24, 2010, while the case was still pending in the Northern District of California, plaintiff filed and served on defendant a motion to remand this matter to the Superior Court, which argues that defendant has not and cannot establish the existence of federal subject matter jurisdiction. (See Dkt. No. 4.) That same day, United States Magistrate Judge Laurel Beeler signed an order transferring plaintiff's action to this court. (Dkt. No. 5.) Magistrate Judge Beeler did not address defendant's motion for an order of remand.

II. LEGAL STANDARDS

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), cert. denied, 131 S. Ct. 65 (2010). "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, 599 F.3d 1102, 1106 (9th Cir. 2010) (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)).

III. DISCUSSION

As noted above, defendant removed this action to federal court on the basis of this court's federal question jurisdiction and diversity jurisdiction. For the reasons that follow, neither of these is a proper basis for removal, and the undersigned concludes that this ...


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