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First Northern Bank of Dixon, A California Banking v. David Hatanaka; Candice Hatanaka

December 16, 2011

FIRST NORTHERN BANK OF DIXON, A CALIFORNIA BANKING CORPORATION, PLAINTIFF,
v.
DAVID HATANAKA; CANDICE HATANAKA, DEFENDANTS.



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 First Northern Bank of Dixon's ("plaintiff") motion to remand this action to the superior court of California for the County of Yolo ("Superior Court"). (Mot. to Remand, Dkt. Nos. 12-13.)*fn1 Defendants David and Candice Hatanaka ("defendants") are proceeding without counsel in this action.*fn2

A review of the court's docket indicates that defendants have not filed a written opposition to the pending motion to remand.

This matter came on for hearing before the undersigned on December 15, 2011, a date the court selected after granting plaintiff's ex parte application to have this matter heard on shortened time. (Dkt. No. 11.) Attorney John McCardle attended the hearing on behalf of the plaintiff. There was no appearance 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.

I. BACKGROUND

On September 13, 2011, plaintiff filed a Verified Complaint for Unlawful

Detainer ("Complaint") in the Superior Court, Case Number UD 11-2082, seeking to recover possession of the property alleged to be situated in the County of Yolo. (Not. of Removal, Dkt. No. 1, Exh. A thereto ("Compl.").) The Complaint's first unlawful detainer claim targets real property located at 13605 County Road 88 in Esparto, California ("Road 88 Property"). (Compl. at 2-3.) The Complaint's second unlawful detainer claim targets real property located at 19355 County Road 87B in Esparto, California ("Road 87B Property"). (Id. at 3-4.) The Complaint alleges that plaintiff purchased the two subject properties at trustee's sales that occurred in accordance with California state law and terms of the Deeds of Trust executed by defendants, that plaintiff's titles pursuant to such sales have been perfected, and that plaintiff is entitled to immediate possession of the properties. (Compl. at 2-4.) It further alleges that plaintiff provided defendants, who once owned and apparently still occupy the properties, with written notice to vacate the premises and deliver possession of the properties within 3 days after service of said notice, and that defendants failed to vacate and deliver possession. (Id.) Through this action, plaintiff seeks: (1) restitution and possession of the subject properties, (2) damages at a rate of $166.66 per day from August 29, 2011, until the date of entry of judgment for each day that defendant remains in possession of the Road 88 Property, and (3) damages at a rate of $33.33 per day from August 29, 2011, until the date of entry of judgment for each day that defendant remains in possession of the Road 87B Property.*fn3 (Compl. at 5.)

On November 8, 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. § 1331" (Not. of Removal at 2), and asserted that "this civil action arises under the laws of the United States" and cited "The Protecting Tenants at Foreclosure Act [12 U.S.C. § 5220]." (Notice of Removal at 2.) Defendants' Notice of Removal does not assert diversity as a basis for jurisdiction, and contains no allegations regarding citizenship or the jurisdictional amount.

II. LEGAL STANDARDS

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. ยง 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 ...


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