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Federal National Mortgage Association v. Derryl Williams

January 3, 2012

FEDERAL NATIONAL MORTGAGE ASSOCIATION, PLAINTIFF,
v.
DERRYL WILLIAMS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS & RECOMMENDATIONS

Defendant David Meyers, proceeding pro se, filed on November 18, 2011 a Notice of Removal of an unlawful detainer action filed against defendant Derryl Williams et al. in state court.*fn1 Plaintiff Federal National Mortgage Association ("Fannie Mae") has now filed a motion to remand. Defendant has not filed a response. After reviewing the application, the court recommends that the case be remanded to state court.*fn2

BACKGROUND

Defendant Williams was sued in state court in an unlawful detainer action for his refusal to quit and deliver possession of residential real property purchased by plaintiff at a non-judicial foreclosure sale.

Defendant Meyers filed a petition for removal, alleging that the Protecting Tenants at Foreclosure Act preempts state law and that as a bona fide tenant of the property, he is protected by federal law. He also claims that the PTFA requires ninety days notice for eviction and that "it is impossible to evict a bona fide residential tenant of a foreclosed landlord in California under State law, since the cause of action is purely a Federal one in ejectment." (Notice of Removal, at 3.) He claims the court has federal question jurisdiction pursuant to 28 U.S.C. § 1441 because the PTFA presents a substantial question of federal law. (Id. at 4.) Plaintiff moves for remand, contending that the filing of the removal was untimely because it was filed on November 18, 2011, more than thirty days after defendant received the initial pleading and filed an answer in the state court action, in violation of 28 U.S.C. § 1446(b). Plaintiff also contends that the court lacks federal subject matter jurisdiction.

DISCUSSION

A. Timeliness of Removal

Plaintiff is correct in its argument that the removal notice was untimely filed. The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

28 U.S.C. § 1446(b).

The unlawful detainer action was filed in Sacramento County Superior Court on May 12, 2011. (Wechsler Decl., ¶ 3.) Defendant appeared in that action on July 25, 2011. (Id., Ex. B.) Defendant filed the notice of removal on November 18, 2011, more than thirty days after he appeared in the state court case. Therefore, his removal was untimely.

B. Federal Question Jurisdiction

Moreover, even if the removal notice had been timely filed, a district court has an independent duty to examine its own jurisdiction and remand a removed action "since removal is permissible only where original jurisdiction exists at the time of removal or at the time of the entry of final judgment ...." Sparta Surgical Corp. v. National Ass'n. of Securities Dealers, Inc., 159 F.3d 1209, 1211 (9th Cir. 1998), quoting Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 43, 118 S. Ct. 956, 966 (1998); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 229, 110 S. Ct. 596, 606-07 (1990); Harris v. Provident Life and Acc. Ins. Co., 26 F.3d 930, 932 (9th Cir. 1994).

Removal jurisdiction statutes are strictly construed against removal. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). "The burden of establishing federal jurisdiction falls on the party invoking removal." Harris v. Provident Life and Accident Ins. Co., 26 F.3d 930 (9th Cir. 1994) (quoting Gould v. Mut. Life Ins. Co. of New York, 790 F.2d 769, 771 (9th Cir.1986)).

A plaintiff may bring suit in federal court if his claim "arises under" federal law. 28 U.S.C. ยง 1331. In that situation, the court has original jurisdiction. A state court defendant cannot invoke the federal court's original jurisdiction. But he may in some instances invoke the court's removal jurisdiction. The requirements to invoke removal jurisdiction are often identical to those for invoking its ...


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