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Kelly J. Wise v. Suntrust Mortgage

April 18, 2011

KELLY J. WISE,
PLAINTIFF,
v.
SUNTRUST MORTGAGE, INC.; THE WOLF FIRM; AND DOES 1-100, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

United States District Court For the Northern District of California

ORDER REMANDING CASE

On March 10, 2011, Plaintiff Kelly J. Wise filed a complaint in the Superior Court of Santa Cruz County against Defendants Suntrust Mortgage, Inc. ("Suntrust") and Wolf Firm ("Wolf 19 Firm"), alleging claims arising in connection with a home mortgage transaction. On March 24, 20 2011, Defendant Suntrust removed this action to federal court on the basis of federal question and 21 diversity jurisdiction. Subsequently, on April 14, 2011, Plaintiff filed an application for a 22 temporary restraining order seeking to enjoin a Trustee Sale scheduled to take place on April 19, 23 2011. This action was reassigned to the undersigned Judge on April 15, 2011. Having reviewed 24 the pleadings and papers filed in this action, the Court finds this it lacks removal jurisdiction and 25

REMANDS the case to state court. 26

I.Background

On March 10, 2011, Plaintiff filed a Complaint in the Santa Cruz County Superior Court 28 against Defendants Sun Trust and Wolf Firm. Plaintiff's Complaint asserted four claims under California state law: (1) fraud; (2) concealment; (3) wrongful foreclosure in violation of California 2 Civil Code § 2329.5; and (4) violations of California Business and Professions Code § 17200. On 3 Removal, Ex. 2, ECF No. 1. Approximately six days later, on March 24, 2011, Sun Trust removed 5 the action to federal court on the basis of federal question and diversity jurisdiction. Sun Trust 6 subsequently filed a motion to dismiss Plaintiff's Complaint, and on April 13, 2011, Plaintiff 7 responded to Sun Trust's motion by filing a First Amended Complaint. The First Amended 8 § 1710; (2) actual fraud, pursuant to California Civil Code § 1572; (3) negligent misrepresentation; 10 violations of California Business and Professions Code § 17200.

On April 14, 2011, Plaintiff filed an ex parte application for a temporary restraining order ("TRO") to enjoin the sale of her property pursuant to a Trustee's Sale that is currently scheduled 14 for April 19, 2011, at 1:30 p.m. Sun Trust opposes Plaintiff's application. The Court does not 15 reach the merits of Plaintiff's TRO application, however, because it finds that it lacks subject 16 matter jurisdiction over the removed action.

March 18, 2011, Defendant Wolf Firm filed a Declaration of Non-Monetary Status. Notice of 4 Complaint asserts six claims under California state law: (1) fraud pursuant to California Civil Code 9

(4) concealment; (5) wrongful foreclosure in violation of California Civil Code § 2923.5; and (6)

II.Legal Standard

Every federal court has an independent obligation to examine its own jurisdiction.

Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). In the case of a removed action, if it 20 appears at any time before final judgment that the court lacks subject matter jurisdiction, the court 21 must remand the action to state court. 28 U.S.C. § 1447(c). Federal jurisdiction "is determined 22

(and must exist) as of the time the complaint is filed and removal is effected." Strotek Corp. v. Air 23 Transport Ass'n. of America, 300 F.3d 1129, 1133 (9th Cir. 2002). "The removal statute is strictly 24 construed, and any doubt about the right of removal requires resolution in favor of remand." 25

Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus v. Miles, 26 Inc., 980 F.2d 564, 566 (9th Cir. 1992)). 27 28

3 the basis of both federal question and diversity jurisdiction. The Court will consider each potential 4 jurisdictional basis in turn. 5

7 state law.*fn1 In its Notice of Removal, Sun Trust argues that this Court has federal question 8 jurisdiction over these state law claims because they are predicated upon violations of the Truth in 9

("RESPA"), 12 U.S.C. § 2601 et seq.; and the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. § 1691 et seq. Specifically, Sun Trust argues that the general allegations in the Complaint plead

claims under these federal statutes and that Plaintiff's claims for fraud and concealment are artfully 13 pled TILA and RESPA claims. Sun Trust therefore argues that Plaintiff's right to relief necessarily 14 depends upon resolution of a substantial question of federal law, and this Court has federal 15 question jurisdiction over Plaintiff's claims. The Court disagrees. 16

17 complaint rule," which provides that "federal jurisdiction exists only when a federal question is 18 presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 19 482 U.S. 386, 392 (1987). This rule makes the plaintiff the master of her complaint and permits 20 her to avoid federal jurisdiction by relying exclusively on state law. Id. Ordinarily, therefore, 21 federal question jurisdiction is determined from the face of the plaintiff's complaint. Easton v. 22

The artful pleading doctrine allows federal courts to retain jurisdiction ...


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