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Hsbc Bank Usa, National Association v. Daniel Lopez and Olga Lopez

July 14, 2011

HSBC BANK USA, NATIONAL ASSOCIATION,
PLAINTIFF,
v.
DANIEL LOPEZ AND OLGA LOPEZ,
DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER GRANTING DEFENDANTS' MOTIONS TO PROCEED IN FORMA PAUPERIS (Docs. 2, 3)
FINDINGS AND RECOMMENDATION TO REMAND THE MATTER TO KERN COUNTY SUPERIOR COURT (Doc. 1)

Daniel Lopez and Olga Lopez ("Defendants") seek to proceed in forma pauperis and pro se with an action removing an unlawful detainer action from Kern County Superior Court. Defendants filed a notice of removal on July 5, 2011 (Doc. 1), along with their individual motions to proceed in forma pauperis. (Docs. 2-3).

For the following reasons, Defendants motions to proceed in forma pauperis is GRANTED. However, the Court finds it lacks jurisdiction over this matter and recommends the matter be REMANDED to Kern County Superior Court.

I. Proceeding in forma paueris

The Court may authorize the commencement of an action without prepayment of fees when an individual "submits an affidavit that includes a statement of all assets such person . . . possesses [and] that the person is unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a). The Court has reviewed the applications and has determined Defendants satisfy the requirements of 28 U.S.C. § 1915(a). Therefore, Defendants's motions to proceed in forma pauperis are GRANTED.

II. Procedural History

Plaintiff HSBC Bank USA, National Association, commenced this action by filing a complaint for unlawful detainer in Kern County Superior Court against Daniel Lopez and Olga Lopez on March 3, 2011, in case number S-1500-CL-257480. (Doc. 1, Exh. 1). On April 1, 2011, defendants filed a motion to quash their summons and sought an order dismissing the action. (Doc. 1, Exh. 2).

On July 5, 2011, Defendants filed a "Notice of Removal," thereby commencing the action in this Court. (Doc. 1). Defendant's notice for removal reads like a complaint for damages, because Defendants seek quiet title of the property located at 9210 East Wilson Road, Bakersfield, California, 93307. Id. at 2. Defendants assert the district court has jurisdiction over the quiet title action pursuant 28 U.S.C. §§ 1346, 2410 .

III. Removal Jurisdiction

Pursuant to 28 U.S.C. § 1441(a), a defendant has the right to remove a matter to federal court where the district court would have original jurisdiction. Caterpillar, Inc. v. Williams, 482 U.S. 286, 392 (1987). Specifically, Except 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 defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

28 U.S.C. § 1441(a). District courts have "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Id. at § 1331.

A party seeking removal must file a notice of removal of a civil action within thirty days of receipt of a copy of the initial pleading. Id. at § 1446(b).Removal statutes are to be strictly construed, and any doubts are to be resolved in favor of state court jurisdiction and remand. See Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992).The party seeking removal bears the burden of proving its propriety. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996); Abrego v. Dow Chem. Co., 443 F.3d 676, 683-85 (9th Cir. 2006); see also Calif. ex. rel. Lockyer v. Dynegy, Inc., 2274 F.3d 831, 838 ("the burden of establishing federal jurisdiction falls to the party ...


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