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Ben Zvafler, Trustee v. Mark Casey

December 16, 2010

BEN ZVAFLER, TRUSTEE, PLAINTIFF,
v.
MARK CASEY, AN INDIVIDUAL; DEBRA CASEY, AN INDIVIDUAL; DOES 1-10, DEFENDANTS,
MARK CASEY, AN INDIVIDUAL; DEBRA CASEY, AN INDIVIDUAL, CROSS-CLAIMANTS,
v.
BEN ZVAFLER, TRUSTEE, ET AL., CROSS-DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matters before the Court are Plaintiff Motion to Remand of Action to State Court (ECF No. 19) and GMAC Mortgage LLC's Motion to Dismiss (ECF No. 17).

BACKGROUND

On May 27, 2010, Defendants removed this case to this Court alleging the Court has original jurisdiction pursuant to 12 U.S.C. § 1819(b)(2)(A) because the Federal Deposit Insurance Corporation, acting as a receiver for New Century Financial Corporation, is an "indispensable and necessary party." (ECF No. 1 at 3).

Plaintiff initially filed a Motion to Remand on June 11, 2010 (ECF No. 4) which was denied without prejudice on August 2, 2010, on the grounds that the action was subject to an automatic bankruptcy stay. (ECF No. 9).

On June 30, 2010, Defendants filed counterclaims and crossclaims against Timothy F. Geithner, Secretary of the United States Department of the Treasury; the United States Department of Treasury; and Federal Housing Finance Agency among others. (ECF No. 5).

On August 12, 2010, Plaintiff filed a second Motion to Remand (ECF No. 10) which was denied without prejudice on September 24, 2010, on the grounds that the action was subject to a second automatic bankruptcy stay. (ECF No. 14). This Court ordered the case administratively closed.

On November 22, 2010, this case was reopened. (ECF No. 18). On November 23, 2010, Plaintiff's Motion to Remand of Action to State Court was filed. (ECF No. 19). To date, Defendants have not filed an opposition.

ALLEGATIONS OF THE COMPLAINT

Defendants Mark Casey and Debra Casey are in possession of property located at 5390 Burford Street, San Diego, CA 92111. (ECF No. 1 at 9). On April 16, 2010, Ben Zvaifler, trustee, purchased the property in a trustee sale following foreclosure on the property pursuant to Cal. Civ. Code § 2924 et seq. Id. at 10. On April 23, 2010, Defendants were served with notice to deliver possession of the premises to Plaintiff within three days pursuant to Cal. Civ. P. Code § 1161 et seq., but Defendants continue to occupy the premises. Id. at 10-11. Plaintiff seeks restitution and possession of the property as well as damages from April 27, 2010, until Defendants are no longer in possession of the property. Id. at 12.

DISCUSSION

Under 28 U.S.C. § 1441(a), "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 . . . ." 28 U.S.C. § 1441(a). A district court must remand a case to state court "if at any time before the final judgment it appears that the district court lacks subject matter jurisdiction." 28 U.S.C. § 1447(c). The removal statute is strictly construed, and any doubt about the right of removal requires resolution in favor of remand. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). "The presumption against removal means that the defendant always has the burden of establishing that removal is proper." Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009).

Absent diversity of citizenship, a federal court has subject matter jurisdiction "when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (citation omitted); see also Beneficial National Bank v. Anderson, 539 U.S. 1, 12 (2003) ("A federal question is presented when the complaint invokes federal law as the basis for relief.") (Scalia, J., dissenting) (citing Caterpillar, 482 U.S. at 392). The well pleaded complaint rule "makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar, 482 U.S. at 392. "Removability cannot be created by defendant pleading a counter-claim presenting a federal question...." Takeda v. Northwestern Nat. Life Ins. Co., 765 F.2d 815, 822 (9th Cir. 1985) (quotation and citations omitted).

12 U.S.C. ยง 1819, which governs the federal court jurisdiction over the Federal Deposit ...


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