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Title: the Bank of Mellon New York v. Kyung R. Lee Choe

February 27, 2012

TITLE: THE BANK OF MELLON NEW YORK
v.
KYUNG R. LEE CHOE



The opinion of the court was delivered by: Present: Honorable Cormac J. Carney, United States District Judge

JS-6

CIVIL MINUTES -- GENERAL

Michelle Urie N/A Deputy Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT:

None Present None Present

PROCEEDINGS: (IN CHAMBERS) ORDER REMANDING CASE FOR LACK OF SUBJECT MATTER JURISDICTION [filed 02/03/12]

Having read and considered the papers presented by the parties, the Court finds this matter appropriate for disposition without a hearing. See Fed. R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing set for March 5, 2011at 1:30 p.m. is hereby vacated and off calendar.

Introduction and Background

On March 14, 2011, Plaintiff The Bank of New York Mellon, formerly known as The Bank of New York, solely in its capacity as trustee for the benefit of the Certificateholders of the CWABS Inc., Asset-Backed Certificates, Series 2004-6 ("Plaintiff") filed this unlawful detainer action against Defendant Kyung R. Lee Choe in Orange County Superior Court, arising from the possession of the property located at 5829 Los Pacos Street in Buena Park, California (the "Property"). (Dkt. No. 1, Exh. A [Complaint]; Pl.'s Req. for Jud. Notice, Exh. D [Complaint].) Ms. Choe had title to the Property until the Property was sold to Plaintiff in a non-judicial foreclosure sale. (Compl. ¶¶ 1, 5, 6.) On March 4, 2011, Plaintiff served on Ms. Choe a Notice to Quit within three days. (Id. ¶ 9, Exh. B [Notice to Quit].) Ms. Choe, however, refused to deliver up possession of the Property. (Id. ¶ 10.) Plaintiff seeks possession of the Property, pursuant to Cal. Code Civ. Proc. § 1161a. (Id. ¶ 11.) Plaintiff additionally seeks restitution and damages at the rate of $98.07 per day-the reasonable daily rental value of the Property-from and including March 8, 2011, for each day Ms. Choe continues in possession of the Property up to date of judgment. (Id., Prayer.)

On September 6, 2011, Ms. Choe removed the action to this Court on the basis of federal question and diversity jurisdiction. (Dkt. No. 1 [Notice of Removal].) Currently before the Court is Plaintiff's motion to remand the case to state court based on lack of subject matter jurisdiction, filed on February 3, 2012. (Dkt. No. 5.) Ms. Choe did not submit an opposition. For the reasons discussed below, Plaintiff's motion is GRANTED.

Discussion

Legal Standard

A civil action brought in a state court, but over which a federal court may exercise original jurisdiction, may be removed by the defendant to a federal district court. 28 U.S.C. § 1441(a). "A suit may be removed to federal court under 28 U.S.C. § 1441(a) only if it could have been brought there originally." Sullivan v. First Affiliated Sec., Inc., 813 F.2d 1368, 1371 (9th Cir.1987); Infuturia Global Ltd. v. Sequus Pharmaceuticals, Inc., 631 F.3d 1133, 1135 n.1 (9th Cir.2011) ("[A] federal court must have both removal and subject matter jurisdiction to hear a case removed from state court.") The burden of establishing subject matter jurisdiction falls on the party seeking removal, and the removal statute is strictly construed against removal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992) ("Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.") A federal court can assert subject matter jurisdiction over cases that (1) involve questions arising under federal law or (2) are between diverse parties and involve an amount in controversy that exceeds $75,000. 28 U.S.C. ยงยง 1331, 1332. Cases may also be ...


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