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 for an order remanding this unlawful detainer action to the Superior Court of the State of California, County of El Dorado ("Superior Court").*fn2 (Dkt. No. 17.) For the reasons that follow, the undersigned recommends that plaintiff's motion be granted and that this entire case be remanded to the Superior Court for further proceedings.
Plaintiff, Federal National Mortgage Association (or "Fannie Mae"), is alleged to be the purchaser of real property at a trustee's sale effectuated under California state law. (Compl. for Unlawful Detainer Following Foreclosure Sale ("Complaint") ¶¶ 8-11.) Defendants are individuals who are alleged to be holdover occupants and previous owners of the subject property. (Compl. ¶¶ 4-5.) Defendants appear to be residents of the State of California.
Plaintiff alleges that following the trustee's sale and perfection of
plaintiff's title to the subject property, it served defendants with a
"Three Day Notice for Possession," which required defendants to, among
other things, quit and deliver up possession of the premises to
plaintiff. (Compl. ¶ 12 & Ex. B.) Plaintiff alleges that one defendant
or both defendants remain in possession of the property.*fn3
(Id. ¶¶ 13-14.)
On August 27, 2010, plaintiff filed its verified Complaint for Unlawful Detainer Following Foreclosure Sale in the Superior Court, seeking: (1) restitution of the property in question; (2) damages at a rate of $30.00 per day from August 23, 2010, until the date of entry of judgment for plaintiff; and (3) costs "and further relief as is proper." (Compl. at 4.) The caption of the Complaint states the following: "Amount demanded does not exceed $10,000." (Id. at 1.)
It is not clear from the papers before the court whether defendant Chanda J. Bridgeman was ever served with the Complaint. A letter that she filed with the court on November 23, 2010, asserts that she was not aware of the contents of this lawsuit until October 23, 2010. (Dkt. No. 32.) Defendant Harley S. Bridgeman, Jr. represents in his Notice of Removal that he was served with "notice of suit" on September 22, 2010. (Notice of Removal ¶ 2, Dkt. No. 1.)
On September 27, 2010, Mr. Bridgeman removed the unlawful detainer action to this court on the grounds that: (1) this action is related to a separate lawsuit filed by Mr. Bridgeman in this court, Bridgeman v. United States of America et al., 2:10-cv-1457 JAM KJN PS ("Bridgeman I")*fn4 ; (2) this court "has jurisdiction based upon 28 U.S.C. §§ 1331 and 1367(a)." (Notice of Removal ¶¶ 3-4.) Defendant Chanda Bridgeman did not join in the removal of this action to federal court, and nothing in the record indicates that she consented to the removal; indeed, the record reflects that Mrs. Bridgeman has not consented to any action of Mr. Bridgeman related to any litigation pending in this court. (See Letter, Nov. 23, 2010, Dkt. No. 32.) Mr. Bridgeman's Notice of Removal reflects that he did not obtain consent for removal from any other defendants, i.e., Chanda Bridgeman, because "it was unknown whether or not other defendants have been properly served, and defendant, Harley S. Bridgeman Jr., is the only named plaintiff in related case No. 2:10-cv-01457-JAM-KJN." (Notice of Removal ¶ 5.)
After removing this action to federal court, Mr. Bridgeman ultimately filed an amended answer to the Complaint, which includes counterclaims against plaintiff and several parties who are not plaintiffs in this action, but are named defendants in the related Bridgeman I case: T.D. Service Company; Fremont Bank; and the United States of America. (Dkt. No. 15.) Mr. Bridgeman subsequently filed a First Amended Third-Party Complaint, which asserts third-party claims against the United States of America. (Dkt. No. 16.) The United States of America filed a motion to dismiss the claims asserted against it in this case, which is set to be heard on January 27, 2011. (Dkt. No. 35.) On December 14, 2010, Mr. Bridgeman filed a "Second Amended Third-Party Complaint" against the United States of America without seeking leave to amend.*fn5 (Dkt. No. 47.)
On November 3, 2010, plaintiff filed the pending motion for an order remanding this action to the Superior Court. (Dkt. No. 17.) Mr. Bridgeman filed a timely opposition. (Dkt. No. 31.) Plaintiff did not file a reply brief.
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 ...