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Federal Home Loan Mortgage Corporation v. Thomas Lee; and Does 1 To 10

May 10, 2012

FEDERAL HOME LOAN MORTGAGE CORPORATION, PLAINTIFF,
v.
THOMAS LEE; 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

Presently before the court is plaintiff's motion to remand this unlawful detainer action to the Superior Court of California for the County of El Dorado ("Superior Court") (Dkt. No. 4).*fn1 Defendant failed to file a written opposition or any other response 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.

I. BACKGROUND

On January 10, 2012, plaintiff initiated a limited civil case*fn2 in the Superior Court by filing an unlawful detainer complaint, which noted that the "Amount Demanded Does Not Exceed $10,000.00" ("Complaint"). (Compl. at 1, attached as Ex. A to Notice of Removal; see also Withem Decl., Ex. B, Dkt. No. 4.) Plaintiff filed its case seeking to recover possession of the subject residential property located in El Dorado Hills, California. (Compl. ¶ 2.)

The Complaint alleges that on or about October 24, 2011, plaintiff acquired title to the property via a Trustee's Deed following foreclosure proceedings, and that plaintiff perfected title in itself. (Compl. ¶ 5 & Ex. A.)*fn3 Plaintiff recorded a Trustee's Deed Upon Sale with the El Dorado County Recorder's office on November 2, 2011. (Id., Ex. A.)

Defendant appears to be the former owner of the property. (See Compl., Ex. A; see also Demurrer to Compl. at 5, attached as Ex. B to Notice of Removal.) Plaintiff alleges that on December 3, 2011, it provided defendant with a notice to vacate the premises and deliver possession of the property within three days. (See Compl. ¶ 6 & Ex. B.)*fn4 Plaintiff alleges that defendant failed to timely vacate and deliver possession of the property and continues to possess and occupy the property. (Id. ¶¶ 4, 7-8.) Through this action, plaintiff seeks: (1) restitution and possession of the subject property; (2) damages for unlawful detention at a rate of $100 per day from December 7, 2011, through the entry of judgment; and (3) costs of suit. (Compl. at 3.)

Defendant filed a demurrer to the Complaint in the Superior Court on February 15, 2012, arguing that the notice to quit served by plaintiff was defective. (See generally Demurrer, attached as Ex. B to Notice of Removal; see also Withem Decl., Ex. C.) The Notice of Removal asserts that the demurrer was "based on a defective notice, i.e., the Notice to Occupants to Vacate Premises, failed to comply with The Protecting Tenants at Foreclosure Act [12 U.S.C. §5220]." (Notice of Removal ¶ 8; see also id. ¶ 1.) Plaintiff's counsel declares under penalty of perjury that the Superior Court overruled defendant's demurrer (Withem Decl. ¶ 11), and defendant filed an answer to the Complaint on March 6, 2012 (Answer, attached as Ex. B to Notice of Removal, and as Ex. D to Withem Decl.).*fn5

Defendant removed this unlawful detainer action to federal court on April 4, 2012, pursuant to 28 U.S.C. § 1441(a), asserting that this court has subject matter jurisdiction over plaintiff's claim pursuant to 28 U.S.C. § 1331.*fn6 (Notice of Removal ¶¶ 5-6, 10.) Defendant asserts that "[f]ederal question jurisdiction exists because Defendants' [sic] demurrer, a pleading depend [sic] on the determination of Defendants' [sic] rights and Plaintiff's duties under federal law." (Id. ¶ 10.) The implication of defendant's statement appears to be that defendant believes this case was removable on the basis of his defense to the unlawful detainer action premised on the adequacy of the notice to quit under the Protecting Tenants at Foreclosure Act of 2009.

On April 11, 2012, plaintiff filed its motion to remand, arguing that this court lacks subject matter jurisdiction over its single unlawful detainer claim, and that defendant's removal was untimely.*fn7 As noted above, defendant failed to oppose or otherwise respond to the motion to remand.

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 Lhotka, 599 F.3d 1102, 1106 (9th Cir. 2010) (citation and quotation marks omitted).

Additionally, a federal court has an independent duty to assess whether federal subject matter jurisdiction exists, whether or not the parties raise the issue. 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 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) (citing Sparta Surgical Corp. v. Nat'l Ass'n of Sec. Dealers, Inc., 159 ...


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