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The Bank of New York Mellon v. Maria Flores and Does 1-10

March 6, 2012


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


On February 21, 2012, defendant, who is proceeding without counsel, removed this single-claim unlawful detainer action from the Superior Court of California for the County of Sacramento ("Superior Court") to this court.*fn1 Presently before the court is defendant's application to proceed in forma pauperis (Dkt. No. 2). For the reasons stated below, the undersigned grants defendant's application to proceed in forma pauperis, but recommends that this action be remanded to the Superior Court because this court lacks federal subject matter jurisdiction over plaintiff's claim for relief.

I. Defendant's Application to Proceed In Forma Pauperis Defendant has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Her application and declaration make the showing required by 28 U.S.C. §§ 1915(a)(1) and 1915(2). Accordingly, the undersigned grants defendant's request to proceed in forma pauperis.

II. Screening and Remand for Lack of Subject Matter The determination that a party may proceed in forma pauperis does not complete

the inquiry. The court is also required to screen cases filed by parties proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss a case filed pursuant to the in forma pauperis statute if, at any time, it determines that the allegation of poverty is untrue, the action is frivolous or malicious, the complaint fails to state a claim on which relief may be granted, or the action seeks monetary relief against an immune defendant. Additionally, a federal court has an independent duty to assess whether federal subject matter jurisdiction exists. See United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (stating that "the district court had a duty to establish subject matter jurisdiction over the removed action sua sponte, whether the parties raised the issue or not"); accord Rains v. Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir. 1996). Because subject matter jurisdiction may not be waived by the parties, a district court must remand a removed case if it lacks jurisdiction over the matter. Kelton Arms Condominium Owners Ass'n, Inc. v. Homestead Ins. Co.,346 F.3d 1190, 1192 (9th Cir. 2003); accord Sparta Surgical Corp. v. Nat'l Ass'n of Sec. Dealers, Inc., 159 F.3d 1209, 1211 (9th Cir. 1998); see also 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.").

A. Background

On July 11, 2011, plaintiff filed a complaint in the Superior Court entitled

"Complaint For Unlawful Detainer"*fn2 ("Complaint"), seeking to recover possession of the property at issue that is located in Sacramento, California. (Compl. ¶¶ 2, 9, attached as Ex. A to Notice of Removal, Dkt. No. 1; see also Notice of Removal at 1-2.) The Complaint alleges that plaintiff lawfully purchased the subject property pursuant to a trustee's sale and that plaintiff is entitled, as owner of the property, to immediate possession of the property. (Compl. ¶¶ 5-6.) It further alleges that on June 14, 2011, plaintiff provided defendant, 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. ¶¶ 4, 7 & Ex. 2.) Plaintiff alleges that the defendant failed to vacate and deliver possession. (Id. ¶¶ 8-9.) Through this action, plaintiff seeks: (1) restitution of the subject property, (2) damages at a rate of $50 for each day that defendant unlawfully remains in possession of the property, from the date of the expiration of the notice to quit through judgment; and (3) costs. (Compl. at 3.)

Defendant contends that she demurred to the Complaint while the action was in the Superior Court, and attached her purported demurrer to the Notice of Removal. (Notice of Removal, Ex. B.) There is no indication that the demurrer was actually filed in the Superior Court. However, defendant asserts that the Superior Court overruled the demurrer. In any event, the status of the demurrer in the Superior Court has no material impact on this court's post-removal review of subject matter jurisdiction.

On February 21, 2012, defendant 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. (See Notice of Removal at 2-3.) Specifically, defendant asserts that this court has federal question jurisdiction as a result of plaintiff's alleged failure to comply with the 90-day notice requirement of the Protecting Tenants at Foreclosure Act of 2009, 12 U.S.C. § 5220.*fn3 (Notice of Removal ¶ 8-9.)

B. Legal Standards Governing Removal

In relevant part, the federal removal statute provides: 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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