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Selene Rmof Reo Acquisition, LLC v. Sandy Scher

February 6, 2012

SELENE RMOF REO ACQUISITION, LLC
v.
SANDY SCHER, ET AL.



CIVIL MINUTES - GENERAL

Present: The Honorable MARGARET M. MORROW ANEL HUERTA N/A Deputy Clerk Court Reporter

Attorneys Present for Plaintiffs: Attorneys Present for Defendants: None None

Proceedings: Order to Show Cause Why Case Should Not Be Remanded for Lack of Subject Matter Jurisdiction; Notification of Potential Procedural Defect in Removal

I. BACKGROUND

On June 20, 2011, plaintiff Selene RMOF REO Acquisition, LLC filed an unlawful detainer action against defendants Sandy Scher, Artemis Lister, and all persons claiming a right to possession of the real property at issue in Los Angeles Superior Court.*fn1 The complaint alleges that plaintiff purchased property commonly known as 10949 Ayers Avenue, Los Angeles, 90064 from Wells Fargo Bank, NA in October, 2010.*fn2 Wells Fargo purchased the property at a trustee's sale in July 2010.*fn3 Plaintiff purchased the property from Wells Fargo on or about October 2010; that purchase was perfected by a grant deed on or about May 18, 2011.*fn4 According to the complaint, Scher is either the former owner of the property who defaulted under the deed of trust, or a person claiming a possessory interest in the property, which arose or was created during the prior ownership of the property.*fn5 Scher's possessory interest was extinguished by the foreclosure.*fn6

Defendant Artemis Lister rented the property from Scher at the time plaintiff bought the property.*fn7 After taking possession of the property, plaintiff made a demand that Lister remit rent to plaintiff.*fn8 Lister did not pay plaintiff, and a three day notice to pay rent or quit was served.*fn9 Lister did not pay and did not vacate.*fn10 Scher has also allegedly been in possession of the property from March 8, 2011 to the present.*fn11 On May 31, 2011, plaintiff served Scher with a notice to vacate the premises.*fn12 Scher did not comply and this action ensued.*fn13

On January 27, 2012, defendant Scher removed the action. The removal is not clear as to what basis of jurisdiction Scher invokes.*fn14

II. DISCUSSION

A. Legal Standard Governing Removal and Assertion of Federal Jurisdiction

"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 Ninth Circuit "strictly construe[s] the removal statute against removal jurisdiction." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. Takeda v. Northwestern Nat'l Life Ins. Co., 765 F.2d 815, 818 (9th Cir. 1985)). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Id.

Libhard v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)). "The 'strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id. (citing Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712, n. 3 (9th Cir. 1990); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir.

As the party invoking federal jurisdiction in this case, defendant has the burden of establishing the existence of subject matter jurisdiction. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); In re Ford Motor Co., 264 F.3d 952, 957 (9th ...


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