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David Snyder v. Federal Home Loan Mortgage Corp

March 2, 2012


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

** E-filed March 2, 2012 **



United States District Court For the Northern District of California

Plaintiff David Snyder brought this action in Santa Cruz County Superior Court on June 22, 2011, for claims arising out of his eviction from the home he rented from defendant Wayne Greene 19 until that home was sold in a foreclosure sale (the "subject property"). He alleges claims for breach 20 of contract, wrongful eviction, breach of the implied warranty of habitability, civil harassment, civil 21 coercion,*fn1 and intentional infliction of emotional distress. Snyder sues: 1) Wayne Greene, former 22 owner of the subject property; 2) the Federal Home Loan Mortgage Corporation ("Freddie Mac"), 23 current owner of the subject property; 3) Melissa Sgroi and Malcolm & Cisneros, Freddie Mac's 24 counsel in the unlawful detainer action that Freddie Mac brought against Snyder; 4) Bailey 25

Properties, the property management company that managed the subject property after Freddie Mac 26 27 purchased it; 5) Gene Harding, an employee of Bailey Properties; and 6) Edward Price, Russell 2 Defendants Sgroi and Malcolm & Cisneros first removed this action to federal court in July 2011, when it was assigned the case number C11:03690-RMW. See Snyder v. Fed. Home Loan 5 Cadwallader, and Berri Michel, who are all apparently acquaintances of Wayne Greene.*fn2

Mortg. Corp., 2011 U.S. Dist. LEXIS 125281 (N.D. Cal. Oct. 28, 2011). Freddie Mac did not join in 6 the removal, but did appear in the action. Malcolm & Cisneros and Sgroi moved to dismiss in 7 Dkt. Nos. 4, 9. However, Judge Whyte granted Malcolm & Cisneros's and Sgroi's motion and 9 remanded the case to state court before Freddie Mac's separate motion could be heard. 10 removed the case to this court, where it was given the instant case number and assigned to the undersigned. See Dkt. No. 1 ("Notice of Removal"). These defendants again move to dismiss the 13 complaint for failure to state a claim upon which relief can be granted. Dkt. No. 5 ("Motion to 14 Dismiss"). Snyder has opposed the motions. Dkt. No. 8 ("Opposition"). All parties have expressly 15 consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). The court deemed this 16 matter suitable for determination without oral argument, and vacated the February 7, 2012 hearing. 17

Based on the moving papers and applicable authority, the court rules as follows. 18 "A second removal is permissible when made on new grounds arising from subsequent 20 pleadings or events. Fannie Mae v. Mendez, 2012 U.S. Dist. LEXIS 4068 (C.D. Cal. Jan. 5, 2012) 21 (citing Peabody v. Maud Van Cortland Hill Schroll Trust, 892 F.2d 772, 776 (9th Cir. 1989)); see 22 also 28 U.S.C. 1446(b). However, a party may not remove a case twice on the same grounds. 23 Although no party has addressed the legal effect of the irregularities in this removal 25 procedure, the court finds it necessary to address them because defendants made clear in their 26 Notice of Removal that this action was previously removed and remanded. In their first attempt at 27 removal, Sgroi and Malcolm & Cisneros claimed federal question jurisdiction, because Snyder 28

August 2011, and Freddie Mac separately moved to dismiss in October 2011. C11-03690-RMW, 8

Shortly after the case was remanded, Malcolm & Cisneros, Sgroi, and Freddie Mac again


Seedman v. U.S. Dist. Court for Cent. Dist. of Cal., 837 F.2d 413, 414 (9th Cir. 1988). 24

alleged violations of Sec. 702 of the Protecting Tenants at Foreclosure Act of 2009, Pub. L. 111-22, 2 in his complaint. In their second attempt, they, along with Freddie Mac, cite 12 U.S.C. 1452(f), 3 which grants original federal subject matter jurisdiction over all actions to which Freddie Mac is a 4 party. Notice of Removal p. 2. To this court's knowledge, there have been no subsequent pleadings 5 or events between the order for remand in C11-03690 and the notice of removal that resulted in the 6 instant action. 7

8 inaccurate to say that "new grounds" exist for this second removal. In fact, Freddie Mac was a party 9 when the action was first removed, although it did not join in the first removal as it should have. 10 jurisdiction when they originally removed the action. Instead, they cited only to 28 U.S.C. § 1331, because Snyder's state court complaint alleged violations of PTFA § 702. Therefore, no "new 13 grounds based on subsequent pleadings or events" exist, since both bases for jurisdiction existed at 14 the time of the original removal attempt. However, because the parties did not offer 12 U.S.C. 15 1452(f) as a basis for their first removal, and Judge Whyte did not consider that basis when he 16 remanded the action to state court, this court will hear the matter rather than summarily remand. 17


On motion, a court may dismiss a complaint for failure to state a claim. FED. R. CIV. P. 12(b)(6). The federal rules require that a complaint include a "short and plain statement" showing 21 the plaintiff is entitled to relief. FED. R. CIV. P. 8(a)(2). The statement must "raise a right to relief 22 above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 55 (2007). However, only 23 plausible claims for relief with survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 129 24

S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). A claim is plausible if its factual content "allows the 25 court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 26

1949. A plaintiff does not have to provide detailed facts, but the pleading must include "more than 27 an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 1950. 28

Although the parties have cited different reasons in their two notices of removal, it would be

Malcolm & Cisneros and Sgroi simply did not cite to 12 U.S.C. 1452(f) as a basis for federal


Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). The factual 3 allegations pled in the complaint must be taken as true and reasonable inferences drawn from them 4 must be construed in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 5

Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987)). However, the court cannot assume that "the 7

California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). "Nor is the 9 court required to accept as true allegations that are merely conclusory, unwarranted deductions of 10 fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.

2001) (citing Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th ...

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