The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER and 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"). (Dkt. No. 8.)*fn1
A review of the court's docket indicates that defendants Than
Van Le ("Le") and Dung Ngoc Nguyen ("Nguyen") (collectively
"defendants") have not filed a written opposition to the pending
motion to remand.
This matter came on for hearing before the undersigned on May 19, 2011. Attorney Ted Slabach attended on behalf of the plaintiff. There were no appearances on behalf of defendants.
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 on grounds that this court lacks subject matter jurisdiction over plaintiff's single claim for unlawful detainer.
On September 10, 2010, plaintiff Aurora Loan Services, LLC's
("Aurora" or "plaintiff") filed a Verified Complaint for Unlawful Detainer
("Complaint") in the Superior Court, Case Number 10UD08659, seeking to
recover possession of the property alleged to be situated in the
County of Sacramento. (Notice of Removal, Dkt. No. 1, Exh. 1 thereto
("Compl.").) The Complaint alleges that plaintiff purchased the
subject property at a trustee's sale that occurred in accordance with
California state law and terms of the Deed of Trust executed by
defendants, that plaintiff's title pursuant to that sale has been
perfected, and that plaintiff is entitled to immediate possession of
the property. (Compl. at 1-2.) It further alleges that plaintiff
provided defendants, who once owned and apparently still occupy the
property, with a written notice to vacate the premises and deliver
possession of the property within 3 days after service of such notice,
and that defendant failed to vacate and deliver possession. (Id.)
Through this action, plaintiff seeks: (1) restitution and possession
of the subject property, and (2) damages at a rate of $60.00 per day
from August 21, 2010, until the date of entry of judgment for each day
that defendants remain in possession of the property.*fn2
(Compl. at 3.)
On January 10, 2011, defendants removed this matter to the United States District Court for the Eastern District of California. (Notice of Removal, Dkt. No. 1.) Defendants removed this case pursuant to 28 U.S.C. § 1446(a), and asserted that "the grounds for such removal is being based on claims 'arising under' FEDERAL LAW namely, as to Federal Jurisdiction resulting from the Moving Party's Discovery Request and Demand for: 'THE ORIGINAL BLUE INKED PROMISSORY NOTE', and as to identify the statutory basis for the discovery request/demand and other claims." (Notice of Removal at 2.)
Defendants' Notice of Removal also asserts, in passing and without explanation, that ". . . [defendants'] current residence is that of the State of California is that of complete diversity, as there are no other parties in this case that have been properly served" and "This matter and this case is that of complete diversity . . . [defendants] believe that the amount of controversy exceeds the [sic] $95,000 (Ninety-Five Thousand Dollars)." (Notice of Removal at 2.) The Notice of Removal contains no allegations regarding plaintiff's citizenship and contains no factual allegations in support of defendants' claim that diversity jurisdiction exists pursuant to 28 U.S.C. § 1332. Plaintiff's pending motion (Dkt. No. 8) requests that this action be remanded to state court.*fn3
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). A defendant "desiring to remove any civil action" from state court to federal court must file a "notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant" in the state action.
28 U.S.C. § 1446(a). "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 ...