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Charles Smith, An Individual v. Bank of America

April 6, 2011

CHARLES SMITH, AN INDIVIDUAL;
AND DEBORAH SMITH, AN INDIVIDUAL,
PLAINTIFFS,
v.
BANK OF AMERICA, N.A.; AND
QUALITY LOAN SERVICE CORPORATION; AND DOES 1-20,
DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION AND ORDER RE PLAINTIFF‟S MOTION TO REMAND.

I.INTRODUCTION

Before the court is Plaintiffs‟ motion to remand the case to Fresno County Superior Court. Doc. 6. Defendant Bank of America ("BOA") opposes the motion. Doc. 12.

II.BACKGROUND

On December 27, 2010, Plaintiffs, proceeding in pro per, filed a Complaint against Defendants BOA and Quality Loan Services Corporation ("Quality") in the Superior Court of California, County of Fresno. Doc. 1, Ex. A. The Complaint asserts the following causes of action: (1) fraud -- negligent and intentional misrepresentation; (2) rescission and damages pursuant to the Truth-in-Lending Act ("TILA"), 15 U.S.C. § 1601 et seq.; (3) damages pursuant to the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601 et seq.; (4) damagespursuant to the Fair Debt Collection Practices Act ("FDCPA"); (5) infliction of emotional distress; (6) damages pursuant to 18 U.S.C. § 241; (7) California Business & Professions Code § 17200; (8) quiet title under California Code of Civil Procedure § 761.010; (9) temporary restraining order and preliminary injunction; and (10) damages for violation of 18 U.S.C. § 2071. On January 25, 2011, Defendant BOA removed the case to this court under 28 U.S.C. §1441(b). Doc. 1.

Plaintiffs filed a motion to remand on January 31, 2011.

Doc. 6. Plaintiffs contend that remand is proper because: (1) the court does not have subject matter jurisdiction; (2) the notice of removal does not allege specific facts demonstrating that the amount in controversy exceeds $75,000; (3) Defendant BOA did not timely remove the case to federal court; (4) Defendant Quality did not join the removal; and (5) Defendant BOA did not remove the entire Complaint with its twenty original exhibits. Defendant BOA opposes the motion. Doc. 12. The motion was heard on March 28, 2011.

III.LEGAL STANDARD

28 U.S.C. § 1441(a) provides in pertinent part:

[A]ny 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.

"The threshold requirement for removal under 28 U.S.C. § 1441 is a finding that the complaint contains a cause of action that is within the original jurisdiction of the district court." Hunter v. Philip Morris USA , 582 F.3d 1039, 1042 (9th Cir. 2009) (quoting Ansley v. Ameriquest Mortg. Co. , 340 F.3d 858, 861 (9th Cir. 2003). "A defendant may remove an action to federal court based on federal question jurisdiction or diversity jurisdiction." Hunter v. Philip Morris USA , 582 F.3d at 1042.

To protect the jurisdiction of state courts, removal jurisdiction is strictly construed in favor of remand. Harris v. Bankers Life and Cas. Co. , 425 F.3d 689, 698 (9th Cir. 2005). Any doubt as to the right of removal must be resolved in favor of remand. Gaus v. Miles , 980 F.2d 564, 566 (9th Cir. 1992). It is presumed "that a cause lies outside [the] limited jurisdiction [of the federal courts] and the burden of establishing the contrary rests upon the party asserting jurisdiction." Hunter v. Philip Morris USA , 582 F.3d at 1042 (quoting Abrego Abrego v. Dow Chem. Co. , 443 F.3d 676, 684 (9th Cir. 2006) (alterations in original).

IV.ANALYSIS

A.Subject Matter ...


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