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Citibank, N.A. As Trustee For v. Joseph F. Corey; and Does 1 To 6

April 25, 2012

CITIBANK, N.A. AS TRUSTEE FOR BNC MORTGAGE LOAN TRUST 2007-3, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-3, PLAINTIFF,
v.
JOSEPH F. COREY; AND DOES 1 TO 6, INCLUSIVE, DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS

Presently before the court is plaintiff's motion to remand this unlawful detainer action to the Superior Court of California for the County of Sacramento ("Superior Court") (Dkt. No. 3).*fn1 Defendant failed to file a written opposition to plaintiff's motion to remand.

Because oral argument would not materially aid the resolution of the pending motion, this matter is submitted on the briefs and record without a hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). Having reviewed the moving papers and record in this case, the undersigned recommends that plaintiff's motion to remand be granted and that this case be remanded to the Superior Court on the grounds that this court lacks federal subject matter jurisdiction over plaintiff's unlawful detainer claim. As a result of this conclusion, the undersigned does not address plaintiff's argument premised on abstention principles.

I. BACKGROUND

On January 23, 2012, plaintiff filed a complaint in the Superior Court entitled "Complaint For Unlawful Detainer . . . Amount Demanded Does Not Exceed $10,000.00" ("Complaint"), seeking to recover possession of the subject residential property located in Galt, California. (Compl. at 1 & ¶ 1(b), attached as Ex. B to Naiman Decl., Dkt. No. 3, Doc. No. 3-2; see also Naiman Decl. ¶ 8.) The Complaint alleges that plaintiff purchased the subject property at a "trustee's sale following foreclosure proceedings," that title under the sale was duly perfected in plaintiff, and that plaintiff is the owner of the property and is entitled to immediate possession of the property. (Compl. ¶¶ 4-5; see also Naiman Decl. ¶ 5.) It further alleges that 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. (Compl. ¶¶ 6, 8-9 & Ex. A; see also Naiman Decl. ¶ 6.) Plaintiff alleges that defendant failed to vacate and deliver possession. (Compl. ¶¶ 7, 9; see also Naiman Decl. ¶ 7.) Through this action, plaintiff seeks: (1) restitution and possession of the subject property, (2) damages at a rate of at least $50.00 per day from January 18, 2012 through entry of judgment; and (3) costs. (Compl. at 3.)

While this case was proceeding in the Superior Court, defendant filed a demurrer to plaintiff's Complaint, which was overruled by the Superior Court on or about February 23, 2012. (Naiman Decl. ¶¶ 13.-14) Rather than file an answer to the Complaint, as ordered by the Superior Court, plaintiff removed the case to federal court. (Id. ¶¶ 14-15 & Ex. D; see also Notice of Removal, Dkt. No. 1.)

Defendant removed this unlawful detainer action on February 27, 2012, pursuant to 28 U.S.C. § 1441, asserting that this court has subject matter jurisdiction over plaintiff's claim pursuant to 28 U.S.C § 1331. (Notice of Removal ¶¶ 6, 10.) Specifically, defendant asserts that this court has federal question jurisdiction based on the "Protecting Tenants at Foreclosure Act

[12 U.S.C. § 5220]," and contends that plaintiff failed to provide him with a sufficient 90-day notice to quit as required by that legislation. (See Notice of Removal ¶ 8.) Although plaintiff's Notice of Removal does not specifically assert that this court has subject matter jurisdiction based on the diversity jurisdiction statute, 28 U.S.C. § 1332(a), it asserts in passing that the action was removable on the basis of "28 U.S.C. § 1441 and/or (b)." (Id. ¶ 6.)

On March 7, 2012, plaintiff filed and noticed its motion to remand (Dkt. No. 3). Plaintiff argues that this court lacks subject matter jurisdiction over its single unlawful detainer claim.

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 ...


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