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Federal National Mortgage Association v. Marisol Espinoza; et al

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


February 6, 2012

FEDERAL NATIONAL MORTGAGE ASSOCIATION; PLAINTIFF,
v.
MARISOL ESPINOZA; ET AL,
DEFENDANTS.

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

** E-filed February 6, 2012 **

NOT FOR CITATION

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

United States District Court For the Northern District of California

INTRODUCTION

On February 1, 2012, third-party claimant Martha Rios, proceeding pro se, removed this case 19 from Santa Clara County Superior Court. Docket No. 1 ("Notice of Removal"). For the reasons 20 stated below, the undersigned recommends that this action be summarily remanded to state court. 21

DISCUSSION

Plaintiff Federal National Mortgage Association ("FNMA") filed this unlawful detainer 23 action against Marisol Espinoza and ten Doe Defendants on October 19, 2011 in Santa Clara County 24 Superior Court. Notice of Removal, Ex. A ("Complaint"). According to the complaint, FNMA 25 acquired the subject property through a foreclosure trustee's sale on August 23, 2011, in accordance 26 with California Civil Code section 2924. Id. at ¶ 7. On September 28, FNMA served the defendants 27 with a three-day Notice to Quit. Id. at ¶ 10. Defendants did not respond to the Notice, nor did they 28 vacate the property. Id. at ¶ 11.

matter jurisdiction over the complaint. 28 U.S.C. § 1441. Removal jurisdiction can be based on 3 diversity of citizenship or on the existence of a federal question. Caterpillar Inc. v. Williams, 482 4 U.S. 386, 392 (1987). If, after a court's prompt review of a notice of removal, "it clearly appears on 5 the face of the notice and any exhibits annexed thereto that removal should not be permitted, the 6 court shallmake an order for summary remand." 28 U.S.C. § 1446(c)(4) (emphasis added). These 7 removal statutes are strictly construed against removal and place the burden on the defendant to 8 demonstrate that removal was proper. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 9

Here, Rios asserts that removal is proper based on federal question jurisdiction. See Notice of Removal ¶ 5. Federal courts have original jurisdiction over civil actions "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A claim "arises under" 13 federal law if, based on the "well-pleaded complaint rule," the plaintiff alleges a federal cause of 14 action. Vaden v. Discovery Bank, 129 S. Ct. 1262, 1272 (2009). Alternatively, the complaint may 15 establish that the plaintiff's right to relief "necessarily depends on resolution of a substantial 16 question of federal law." Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage 17 Laborers Vacation Trust, 463 U.S. 1, 27--28 (1983). Defenses and counterclaims asserting a federal 19 question do not satisfy this requirement. Discovery Bank, 129 S. Ct. at 1272. 20

Removal ¶ 5. However, FNMA's complaint alleges only a state law claim for unlawful detainer; it 22 does not allege any federal claims whatsoever. See Complaint. Moreover, resolving FNMA's 23 unlawful detainer claim does not depend on resolution of any substantial issues of federal law. 24

Neither is there diversity jurisdiction over this action. Federal subject-matter jurisdiction 26 based on diversity requires complete diversity of citizenship and an amount in controversy in excess 27 of $75,000. 28 U.S.C. § 1332(a). In this matter, the plaintiff's complaint expressly states that the 28 amount in controversy is less than $10,000. Complaint p.1. Moreover, the defendants and Rios are Removal to federal court is proper where the federal court would have original subject (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). 10

United States District Court For the Northern District of California

Leasehold & Easement, 524 F.3d 1090, 1100 (9th Cir. 2008) (quoting Franchise Tax Bd. v. Constr. 18

Rios asserts that FNMA "actually filed a [f]ederal [q]uestion action in state court." Notice of Accordingly, Rios has failed to show that this action arises under federal law.

California residents, and typically may not remove an action based on diversity to federal court in 2 the forum where they reside.*fn1 See Complaint ¶ 1. Therefore, there is no basis for this court to 3 exercise jurisdiction based either upon a federal question or diversity. 4

Finally, the court notes that Rios may not even be a party to this action. She states in the Notice of Removal that she filed the documents necessary intervene in the state court action, but has 6 provided no evidence that would allow this court to conclude that she is capable of removing this 7 action without the participation or joinder of the named defendant, Marisol Espinoza. See Notice of 8 Removal ¶ 3. 28 U.S.C. § 1441 permits the defendant to remove an action to federal court. 9

However, because this court concludes that there is no basis for it to exercise jurisdiction based 10 either upon a federal question or diversity, it declines to analyze whether Rios is a defendant who may properly remove this action.

United States District Court For the Northern District of California

CONCLUSION

Because the parties have yet to consent to the undersigned's jurisdiction, this court ORDERS 14 the Clerk of the Court to reassign this case to a District Court judge. The undersigned further 15 RECOMMENDS that the newly assigned judge summarily remand the case to Santa Clara County 16 Superior Court. Pursuant to Federal Rule of Civil Procedure 72(b), any party may serve and file 17 objections to this Report and Recommendation within fourteen days after being served. 18 19

IT IS SO ORDERED.

C12-00519 HRL

Notice will be electronically mailed to: Melissa Sgroi msgroi@mclaw.org Mark R. Townsend Nancy E. Powell

Notice will be mailed to: Marisol Espinoza 1556 Leeward Drive San Jose, CA 95113

Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.

United States District Court For the Northern District of California


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