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The Bank of New York Mellon v. Robert Lee

May 31, 2012

THE BANK OF NEW YORK MELLON
v.
ROBERT LEE, ET AL.



Priority Send Enter Closed JS-5/JS-6 Scan Only

CIVIL MINUTES - GENERAL

PRESENT: THE HONORABLE S. JAMES OTERO, UNITED STATES DISTRICT JUDGE

Victor Paul Cruz Courtroom Clerk COUNSEL PRESENT FOR PLAINTIFF: Not Present Not Present Court Reporter COUNSEL PRESENT FOR DEFENDANTS: Not Present

PROCEEDINGS (in chambers): ORDER REMANDING CASE TO LOS ANGELES SUPERIOR COURT [Docket No. 1]

On December 29, 2011, Plaintiff The Bank of New York Mellon ("Plaintiff") filed its Complaint for Unlawful Detainer ("Complaint") in California state court. On April 27, 2012, Defendant Nancy Phillips filed a Notice of Removal ("Notice") and removed this action from Los Angeles County Superior Court to the Central District of California. For the following reasons, the Court REMANDS the case to Los Angeles County Superior Court.

FACTUAL AND PROCEDURAL BACKGROUND

The Complaint sets forth the following allegations. Plaintiff is a corporation authorized to do business in California. (Compl. ¶ 1, ECF No. 1.) Plaintiff is the owner of the property located at 12903 Dickens Street, Studio City, California 91604 (the "Property"). (Compl. ¶ 1.) Defendants Robert Lee and Shirley Nicholas were the original trustors under a deed of trust which secured the Property. (Compl. ¶ 5.) The deed of trust contained a power-of-sale clause that allowed the trustee to proceed with a non-judicial foreclosure in the event of default. (Compl. ¶ 5.) Plaintiff bought the Property at a trustee's sale. (Compl. ¶ 6.)

On December 16, 2011, after Plaintiff obtained legal title to the Property, Plaintiff served on Defendants Lee, Nicholas, and "all others in possession" a Notice to Quit, which allowed tenants or subtenants thirty or ninety days to vacate the Property*fn1 and gave the previous owner and all other potential occupants three days to vacate the premises from the date of service of the Notice to Quit. (Compl. ¶ 8.) More than three days elapsed after service of the Notice to Quit, but possession of the property was not delivered to the Plaintiff. (Compl. ¶ 10.) As a result, Plaintiff filed its Complaint against the Defendants in Los Angeles County Superior Court on December 29, 2011, demanding possession of the Property. (Compl. ¶11.)

The Complaint named Robert Lee, Shirley Nicholas, and Does 1-10 as defendants. (See generally Compl.) Defendants Lee and Nicholas have judgments against them such that they are no longer participants in this litigation. (Notice ¶ 2, ECF No. 1.) Defendant Nancy Phillips filed a pre-judgment claim of right to possession in state court, which allowed her to intervene as a valid defendant in the action under California law. (Notice ¶ 3.) On April 27, 2012, Defendant Phillips removed the action to this Court on the basis of federal question jurisdiction, contending that the action is preempted by the Protecting Tenants at Foreclosure Act of 2009, 12 U.S.C. § 5220 et (See generally Notice.)

DISCUSSION

A. Sua Sponte Consideration of Subject Matter Jurisdiction

The Court raises the issue of subject matter jurisdiction sua sponte. "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction," the district court must remand the case. See 28 U.S.C. § 1447(c). The Ninth Circuit has held that "a court may raise the question of subject matter jurisdiction, sua sponte, at any time during the pendency of the action, even on appeal." Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002). As such, the Court finds it appropriate to determine whether subject matter jurisdiction exists.

B. Legal Standard for Removal

Under this Court's removal jurisdiction, "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..." 28 U.S.C. § 1441(a) (2006). The Ninth Circuit "strictly construe[s] the removal statute against removal jurisdiction." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). This "strong presumption" against ...


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