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Msf Reo Ii, LLC v. Anita M. Catedrilla; Efren L. Catedrilla

February 3, 2012

MSF REO II, LLC, PLAINTIFF,
v.
ANITA M. CATEDRILLA; EFREN L. CATEDRILLA, AND DOES 1-10, INCLUSIVE, 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*fn1 is plaintiff's motion to remand this unlawful detainer action to the Superior Court of California for the County of Solano ("Superior Court"). Sheila Floro, who removed this case to federal court, claims to have intervened in this case as a matter of right. Ms. Floro failed to file a written opposition to plaintiff's motion to remand.

Because oral argument would not materially aid the resolution of the pending motion, this matter is submitted on the briefs and record without a hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). Having reviewed the moving papers 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 the grounds that this court lacks federal subject matter jurisdiction over plaintiff's unlawful detainer claim.*fn2 The undersigned recommends that plaintiff's request for attorney's fees be denied.

I. BACKGROUND

On November 3, 2011, plaintiff filed a complaint in the Superior Court entitled

"Complaint In Unlawful Detainer Demand Amount Under $10,000.00" ("Complaint"), seeking to recover possession of the property at issue that is located in Benicia, California. (Compl. ¶ 2, attached to Notice of Removal, Dkt. No. 1 at 12-19.) The Complaint alleges that plaintiff purchased the subject property at a "foreclosure sale," that title under the sale was duly perfected, and that plaintiff is entitled to immediate possession of the property. (Id. ¶¶ 2, 6.) It further alleges that plaintiff provided the named defendants, who allegedly continued to live at the property at the time the complaint was filed, with notice to vacate the premises and deliver possession of the property within three days. (Id. ¶¶ 5, 7-8 & Ex. 1.) Plaintiff alleges that the named defendants failed to vacate and deliver possession. (Id. ¶¶ 7-8.) Through this action, plaintiff seeks: (1) restitution and possession of the subject property, (2) damages at a rate of $86.66 per day from November 2, 2011; and (3) costs. (Compl. at 4.)

On November 10, 2011, Ms. Floro filed a Prejudgment Claim of Right of Possession in the Superior Court, asserting that she resides at the subject property pursuant to a written rental agreement with the landlord, but was not named in the summons or Complaint. (See Notice of Removal, Dkt. No. 1 at 8-9.) Ms. Floro contends that the named defendants are no longer participants in this litigation, and that she properly intervened in the action without leave of court while the action proceeded in the Superior Court. (See Notice of Removal ¶¶ 2-3.)

On December 9, 2011, Ms. Floro removed the unlawful detainer action to this court pursuant to 28 U.S.C. §§ 1441 and 1446, asserting that this court has subject matter jurisdiction over plaintiff's claim pursuant to 28 U.S.C § 1331. (Notice of Removal ¶ 5.) Specifically, Ms. Floro asserts that this court has federal question jurisdiction based on the "Protecting Tenants at Foreclosure Act of 2009, 12 USC 5220," and contends that plaintiff failed to provide her with a 90-day notice to quit required by that legislation. (See Notice of Removal ¶¶ 5, 7.)

On January 4, 2012, plaintiff filed a defectively noticed motion to remand (Dkt. No. 4). On January 5, 2012, plaintiff correctly noticed a motion to remand (Dkt. No. 7), which argues that this court lacks subject matter jurisdiction over its claim.*fn3

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. . . .

28 U.S.C. § 1441(a). "The defendant bears the burden of establishing that removal is proper." Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009), cert. denied, 131 S. Ct. 65 (2010). "The removal statute is strictly construed against removal jurisdiction," id., and removal jurisdiction "'must be rejected if there is any doubt as to the right of removal in the first instance'" Geographic Expeditions, Inc. v. Estate of ...


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