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Bay Valley Professional Center, LLC v. Jonathan Orcine; Abraham B. Orcine; et al

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


January 12, 2012

BAY VALLEY PROFESSIONAL CENTER, LLC, PLAINTIFF,
v.
JONATHAN ORCINE; ABRAHAM B. ORCINE; ET AL.,
DEFENDANTS.

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

E-filed January 12, 2012

NOT FOR CITATION

ORDER THAT CASE BE REASSIGNED TO A DISTRICT COURT JUDGE REPORT AND RECOMMENDATION [Re: Docket No. 1]

INTRODUCTION

On August 17, 2011, defendants Jonathan and Abraham Orcine (collectively, "Defendants"), 20 proceeding pro se, removed this case from Santa Clara County Superior Court. Docket No. 1 21 ("Notice of Removal"). Plaintiff Bay Valley Professional Center ("Bay Valley") moves to remand 22 and seeks immediate relief by requesting that the motion be heard one week after it was filed. Dkt. 23 Nos. 4, 5. Because none of the parties have consented to the undersigned's jurisdiction, this court is 24 unable to provide the dispositive relief sought. For the reasons stated below, the undersigned DENIES the Motion to Shorten Time, ORDERS that this case be reassigned to a district judge, and 26 RECOMMENDS that this action be summarily remanded to state court. 27

DISCUSSION

Santa Clara County Superior Court. Notice of Removal, Exh. A ("Complaint"). According to the 3 complaint, Bay Valley acquired the subject property, a San Jose residence, through a foreclosure 4 trustee's sale on September 12, 2011, in accordance with California Civil Code section 2924. Id. at ¶ 5

Defendants did not respond to the Notice, nor did they vacate the property. Id. at ¶ 7. 7

8 matter jurisdiction over the complaint. 28 U.S.C. § 1441. Removal jurisdiction can be based on 9 diversity of citizenship or on the existence of a federal question. Caterpillar Inc. v. Williams, 482 10 the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shallmake an order for summary remand." 28 U.S.C. § 1446(c)(4) (emphasis added). These 13 removal statutes are strictly construed against removal and place the burden on the defendant to 14 demonstrate that removal was proper. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 15

Here, defendants assert that removal is proper based on federal question jurisdiction. See Notice of Removal ¶ 6. Federal courts have original jurisdiction over civil actions "arising under the 18 Bay Valley filed this unlawful detainer action against defendants on October 18, 2011 in 4. On September 16, Bay Valley served defendants with a three-day Notice to Quit. Id. at ¶ 6. 6 Removal to federal court is proper where the federal court would have had original subject U.S. 386, 392 (1987). If, after a court's prompt review of a notice of removal, "it clearly appears on (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).

Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A claim "arises under" 19 federal law if, based on the "well-pleaded complaint rule," the plaintiff alleges a federal cause of 20 action. Vaden v. Discovery Bank, 129 S. Ct. 1262, 1272 (2009). Alternatively, the complaint may 21 establish that the plaintiff's right to relief "necessarily depends on resolution of a substantial 22 question of federal law." Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage 23

Laborers Vacation Trust, 463 U.S. 1, 27--28 (1983). Defenses and counterclaims asserting a federal 25 question do not satisfy this requirement. Discovery Bank, 129 S. Ct. at 1272. 26 27 federal Protecting Tenants at Foreclosure Act, 12 U.S.C. § 5220. Notice of Removal at ¶¶ 6-9. 28

However, the defendants raised this alleged violation in a demurrer, a responsive pleading, and -- as Leasehold & Easement, 524 F.3d 1090, 1100 (9th Cir. 2008) (quoting Franchise Tax Bd. v. Constr. 24 Defendants assert that Bay Valley's unlawful detainer claim fails because it violated the noted above -- only the complaint can provide the basis for federal question jurisdiction. Discovery 2

Bank, 129 S. Ct. at 1272. Bay Valley's complaint alleges only a cause of action for unlawful 3 detainer under California law; it does not allege any federal claims whatsoever. See Complaint. 4

Moreover, resolving Bay Valley's unlawful detainer claim does not depend on resolution of any 5 substantial issues of federal law. Accordingly, the defendants have failed to show that this action 6 arises under federal law. 7

8 based on diversity requires complete diversity of citizenship and an amount in controversy in excess 9 of $75,000. 28 U.S.C. § 1332(a).*fn1 In this matter, all parties are citizens of California, and plaintiff's 10 complaint expressly states that the amount in controversy is less than $10,000. Complaint p. 1.

Therefore, there is no basis for this court to exercise jurisdiction based either upon a federal question or diversity. 13

Because the parties have yet to consent to the undersigned's jurisdiction, this court ORDERS 15 the Clerk of the Court to reassign this case to a District Court judge. Bay Valley's Motion to Shorten 16 RECOMMENDS that the newly assigned judge summarily remand the case to Santa Clara County 18 Superior Court. Pursuant to Federal Rule of Civil Procedure 72(b), any party may serve and file 19 objections to this Report and Recommendation within fourteen days after being served. 20

Neither is there diversity jurisdiction over this action. Federal subject-matter jurisdiction

CONCLUSION

Time is DENIED and the hearing on its Motion to Remand is VACATED. The undersigned further

IT IS SO ORDERED.

C11-06253 HRL

Notice will be electronically mailed to:

Todd Bennett Rothbard Richard Allen McBride allspanish@sbcglobal.net 3 Notice will be mailed to: 4 Jonathan Orcine 5 1572 Hillsdale Avenue San Jose, CA 95118 6 Abraham B Orcine 7 1572 Hillsdale Avenue San Jose, CA 95118 Counsel are responsible for distributing copies of this document to co-counsel who have not 9 registered for e-filing under the court's CM/ECF program.


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