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Olga Urista v. Bank of America

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


October 18, 2011

OLGA URISTA, PLAINTIFFS,
v.
BANK OF AMERICA, N.A., BAC HOME LAONS SERVICING, LP, EDRINA PAVEL,
CALCOUNTIES TITLE NATION, JANET DORAN, AND DOES 1-10,
DEFENDANTS.

The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed October 18, 2011 **

NOT FOR CITATION

ORDER DENYING PLAINTIFF'S MOTION TO REMAND [Re: Docket No. 9]

Plaintiff Olga Urista filed the instant action in Santa Clara County Superior Court for alleged 19 predatory lending practices in connection with her home mortgage. The complaint asserts a claim 20 for violation of the Truth in Lending Act (TILA), 15 U.S.C. § 1601, et seq., as well as several state 21 law claims for relief. Defendants timely removed. Pursuant to 28 U.S.C. 1447(c), plaintiff Urista 22 filed a Motion to Remand. All parties have expressly consented that all proceedings in this action 23 may be heard and finally adjudicated by the undersigned. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. 24

The court heard oral argument on this motion on October 4, 2011. Upon consideration of the 25 moving papers and oral argument, the court finds that the plaintiff has not offered adequate grounds 26 to remand this case and therefore DENIES the motion. 27

Ordinarily, "federal jurisdiction exists only when a federal question is presented on the face 28 of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Thus, "the plaintiff [is] the master of the claim; he or she may avoid federal jurisdiction by 2 exclusive reliance on state law." Id. Plaintiff Urista pled a TILA claim in her complaint. Complaint 3 ¶¶ 55-59. Yet in her motion to remand, plaintiff argues that removal is improper because (1) state 4 law predominates; (2) removal would result in needless conflict between state and federal courts; 5 and (3) concurrent jurisdiction in the state courts precludes removal. The court finds that none of 6 these assertions are well-founded. 7

Where state issues predominate and all federal claims are dismissed before trial, "the proper 9 exercise of discretion requires dismissal of the state claims." Wren v. Sletten Constr. Co., 654 F.2d 10 arising under federal law which are properly removed and which fall within the district court's subject matter jurisdiction." Kabealo v. Davis, 829 F. Supp. 923, 926 (S.D. Ohio 1993). Plaintiff's 13 only argument is that since "most" of her claims are based on state law, remand is improper. Docket 14 No. 9, p. 7. Plaintiff cites no legal authority for this claim, and the court is not aware of any 15 authority that would justify remand on these grounds. 16

Plaintiff offers no authority to explain this argument for remand, and the court is not aware 18 of any authority that would justify remanding the action. If plaintiff intends to invoke Burford 19 abstention, she is mistaken in doing so. See Burford v. Sun Oil Co., 319 U.S. 315, 331 (1943). 20

Burford abstention is only appropriate in extraordinary circumstances, where "complex state 21 administrative processes" are present and the case either poses difficult questions of state law 22 bearing on policy problems of substantial import, or federal adjudication would disrupt state efforts 23 to establish a coherent state policy to a matter of significant public concern. New Orleans Public 24 Service, Inc. v. Council of the City of New Orleans, 491 U.S. 350, 361-62 (1989). The instant case 25 does not present any issues that could reasonably be viewed as meriting abstention under this 26 doctrine, and the court declines to abstain on these grounds. 27

C. Whether Concurrent State Court Jurisdiction Precludes Removal 28

A. Whether State Law Predominates 8

529, 536 (9th Cir. 1981). The text of 28 U.S.C. §1441(c) does not authorize the remand "of claims

B. Whether Removal Would Cause "Needless Conflict" 17

"The grant of concurrent jurisdiction is . . . not an express provision against removal and to 2 read it as such would represent an artificial and strained interpretation of congressional intent." 3

McConnell v. Marine Engineers Beneficial Assoc. et al., 526 F. Supp. 770, 772 (N.D. Cal.1981); see 4 also Emrich v. Touche Ross & Co., 846 F.2d 1190 (9th Cir. 1988) ("Since Congress has specifically 5 prohibited removal in certain areas of concurrent jurisdiction, its omission or failure to do so in 6 others indicates that federal removal jurisdiction is retained" (citing McConnell, 526 F. Supp. at 7 772). Governing case law in this district directly contradicts plaintiff's argument.

Therefore, the court finds that plaintiff has made no supportable argument for remand and DENIES her motion. 10

SO ORDERED.

C10-03097 Notice will be electronically mailed to:

Andrea McDonald Hicks hicksa@bryancave.com, angela.howard@bryancave.com, dominic.sims@bryancave.com Christina Yu christinay@hhlawgroup.com, katiec@hhlawgroup.com Joseph Vincent Quattrocchi quattrocchij@bryancave.com, batese@bryancave.com,

grace.wayte@bryancave.com, janette.palaganas@bryancave.com Patricia Ann Boyes patricia@boyeslegal.com 5

Stuart Winston Price swprice@bryancave.com, brenda.vaziri@bryancave.com, holly.ottiger@bryancave.com Jean Claire Wilcox jeanw@hhlawgroup.com 7

Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.

20111018

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