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Aurora Loan Services, LLC v. Trevor et al.

December 12, 2011

AURORA LOAN SERVICES, LLC
v.
TREVOR ET AL.



The opinion of the court was delivered by: Present: The Honorable Margaret M. Morrow Anel Huerta N/a

CIVIL MINUTES - GENERAL

Deputy Clerk Court Reporter

Attorneys Present for Plaintiffs: Attorneys Present for Defendants: N/A N/A

Proceedings: Order Remanding Action to Superior Court for Lack of Subject Matter Jurisdiction[4]

I. FACTUAL BACKGROUND

On March 2, 2011, plaintiff Aurora Loan Services, LLC filed this unlawful detainer action against Daniel Trevor and certain ficticious defendants in Los Angeles Superior Court.*fn1 The complaint involves a post-foreclosure eviction, and states that the amount of damages sought does not exceed $10,000.*fn2 On September 2, 2011, Trevor removed the action to this court. In his notice of removal, Trevor asserts that the case falls within the court's diversity jurisdiction, and that "[p]laintiff's actions have triggered the federal statute prohibiting unlawful debt collection practices act (28 U.S.C. § 1692)."*fn3

On September 30, 2011, Aurora moved to moved to remand the case to state court.*fn4 Trevor has not opposed the motion. Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the court finds plaintiff's motion for decision without hearing. Having carefully reviewed the moving papers, and noting that no opposition has been filed, the court grants the motion.

II. DISCUSSION

A. Defendant's Failure to File a Timely Opposition

Local Rule 7-12 provides that "[t]he failure to file any required paper, or the failure to file it within the deadline, may be deemed consent to the granting or denial of the motion." Ca CD L.R. 7-12. As noted, Trevor failed to oppose plaintiff's motion by the deadline set forth in the court's advance briefing order or by that established in the Local Rules. Under Rule 7-12, the court could grant plaintiff's motion on this basis alone. See Cortez v. Hubbard, No. CV 07-4556-GHK (MAN), 2008 WL 2156733, *1 (C.D. Cal. May 18, 2008) ("Petitioner has not filed an [o]pposition to the [m]otion and has not requested any further extension of time to do so. Pursuant to Local Rule 7-12, his failure to do so could be deemed to be consent to a grant of the [m]otion"); Mack-University LLC v. Halstead, No. SA CV 07-393 DOC (ANx), 2007 WL 4458823, *4 n. 4 (C.D. Cal. Sept. 25, 2007) (holding, where a party "failed to oppose or in any way respond" to a motion, that "[p]ursuant to local Rule 7-12, the [c]court could grant [p]laintiffs' [m]otion on this ground alone"); Ferrin v. Bias, No. ED CV 02-535 RT (SGLx), 2003 WL 25588274, *1 n. 1 (C.D. Cal. Jan. 2, 2003) ("Under Local Rule 7-12, failure to file an opposition may be deemed consent to the granting of the motion"). Nonetheless, the court reviews the merits of the motion below.

B. Legal Standards Governing Removal Jurisdiction

The right to remove a case to federal court is entirely a creature of statute. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). The removal statute, 28 U.S.C. § 1441, allows defendants to remove when a case originally filed in state court presents a federal question or is between citizens of different states and involves an amount in controversy that exceeds $75,000. See 28 U.S.C. §§ 1441(a), (b); see also 28 U.S.C. §§ 1331, 1332(a). Only state court actions that could originally have been filed in federal court may be removed. 28 U.S.C. § 1441(a);

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir. 1988).

The Ninth Circuit "strictly construe[s] the removal statute against removal jurisdiction," and "[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988), Takeda v. Northwestern Nat'l Life Ins. Co., 765 F.2d 815, 818 (9th Cir. 1985), and Libhart, 592 F.2d at 1064). "The 'strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id. (citing ...


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