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U.S. Bank National Association As Trustee For Citigroup Mortgage Loan Trust, Inc. 2006-Nc1 v. Rotonda R. Llopis

April 25, 2012

U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR CITIGROUP MORTGAGE LOAN TRUST, INC. 2006-NC1,
ASSET-BACKED PASS-THROUGH CERTIFICATES SERIES 2006-NC1, PLAINTIFF,
v.
ROTONDA R. LLOPIS;
GERALD LLOPIS; AND DOES 1 TO 10, INCLUSIVE, DEFENDANTS.



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

ORDER AND FINDINGS AND RECOMMENDATIONS

Defendant Rotonda Llopis, who is proceeding without counsel and in forma pauperis, removed this unlawful detainer action to federal court.*fn1 Defendant Gerald Llopis did not join in the removal and has not appeared in the action. On January 26, 2012, the court granted Ms. Llopis's application to proceed in forma pauperis, but ordered Ms. Llopis to show cause why this case should not be remanded to the Superior Court of the State of California for the County of Solano ("Superior Court") on the grounds that Ms. Llopis failed to file plaintiff's complaint and other documents in this court, in violation of the removal requirements of 28 U.S.C. § 1446(a). (See Order & Order to Show Cause ("OSC"), Jan. 26, 2012, Dkt. No. 4.) The court also expressed concern about its ability to exercise subject matter jurisdiction over plaintiff's unlawful detainer claim, but that the court could not adequately assess its subject matter jurisdiction without the complaint.

On February 6, 2012, Ms. Llopis timely filed a response to the OSC, which attached plaintiff's complaint as an exhibit. (Response to OSC, Ex. C, Dkt. No. 5). The response opposed the remand of this case, whether such remand was premised on Ms. Llopis's initial failure to comply with 28 U.S.C. § 1446(a) or the court's apparent lack of subject matter jurisdiction.

The court discharges the OSC based on Ms. Llopis's substantial compliance with the court's order. However, by these findings and recommendations, the undersigned recommends that this case be remanded to the Superior Court for lack of subject matter jurisdiction over plaintiff's unlawful detainer claim.*fn2

I. BACKGROUND

On June 3, 2011, plaintiff filed a complaint in the Superior Court entitled "Complaint For Unlawful Detainer (Demand Under $10,000)" ("Complaint"), seeking to recover possession of the subject property located in Vacaville, California. (See generally Compl., attached as Ex. C. to Response to OSC.) Although the notice of removal only lists Rotonda Llopis as a named defendant, the Complaint names Rotonda R. Llopis and Gerald Llopis as defendants. (Compl. at 1.) Gerald Llopis is named as a "non-tenant occupant of the former vested owner."*fn3 (Id. ¶ 2.)

The Complaint alleges that plaintiff purchased the subject property at a non-judicial foreclosure sale and is the current owner of the property, that title under the sale was duly perfected, and that plaintiff is entitled to possession of the property. (See id. ¶¶ 1, 8.) It further alleges that on February 17, 2011, plaintiff provided the named defendants, who had 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. ¶ 5.) Plaintiff alleges that the named defendants failed to vacate and deliver possession. (Id. ¶ 6.) Through this action, plaintiff seeks: (1) restitution and possession of the subject property, (2) damages at a rate of $50.00 per day from the date of service of the notice to quit though the date of judgment; and (3) costs. (Compl. at 3.)

On January 9, 2012, Ms. Llopis removed the unlawful detainer action to this court pursuant to 28 U.S.C. §§ 1441(a) and 1446, asserting that this court has subject matter jurisdiction over plaintiff's claim pursuant to 28 U.S.C § 1331. (Notice of Removal at 2-3.) Specifically, Ms. Llopis alleges that her due process or equal protection rights, or both, were violated by the manner in which the rules of civil procedure and evidence were applied in the Superior Court. (See id.)

In her response to the OSC, Ms. Llopis appears to abandon her allegation that this court can exercise subject matter jurisdiction over plaintiff's unlawful detainer claim on the basis of federal question jurisdiction. Instead, Ms. Llopis now appears to rely only on diversity of citizenship, see 28 U.S.C. § 1332(a), as the basis for this court's subject matter jurisdiction. (Response to OSC at 3.) The undersigned assesses both purported bases for subject matter jurisdiction below.

II. LEGAL STANDARDS

In relevant part, the federal removal statute provides:

(a) 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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