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

June 1, 2012

THE BANK OF NEW YORK MELLON, PLAINTIFF,
v.
MARIA FLORES AND DOES 1-10, INCLUSIVE, DEFENDANTS.



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

ORDER AND FINDINGS AND RECOMMENDATIONS

On February 21, 2012, defendant, who is proceeding without counsel and informa pauperis, removed this single-claim unlawful detainer case from the Superior Court of California for the County of Sacramento ("Superior Court") to this court, asserting that this court can exercise federal question jurisdiction over plaintiff's claim.*fn1 On March 7, 2012, the undersigned filed findings and recommendations that recommended the remand of this case to the Superior Court on the grounds that this court lacked federal subject matter jurisdiction over plaintiff's single unlawful detainer claim. (See Order and Findings and Recommendations, Mar. 7, 2012, Dkt. No. 4.) Before the district judge assigned to this case could rule on the undersigned's recommendations, defendant asserted a new basis for subject matter jurisdiction, diversity jurisdiction, in an "Amended Notice of Removal" (Dkt. No. 5), and plaintiff appeared in the action and filed a motion to remand (Dkt. No. 7). Presently before the court is plaintiff's motion to remand this matter to the Superior Court for lack of federal subject matter jurisdiction.*fn2

Defendant filed a written opposition (Dkt. No. 20) that only addresses a purported motion to dismiss her complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)-defendant did not file a "complaint" in this case, and more importantly, no such motion to dismiss is on file in this case.

Because defendant has asserted a second basis for this court's subject matter jurisdiction, the undersigned vacates the previously filed recommendation to remand this case for want of federal question jurisdiction; addresses plaintiff's motion to remand, addressing both of defendant's asserted bases for subject matter jurisdiction; and recommends that this case be remanded to the Superior Court for lack of subject matter jurisdiction and violation of the "forum defendant rule." The undersigned further recommends that this case be closed.*fn3

I. BACKGROUND

On July 11, 2011, plaintiff filed a complaint in the Superior Court entitled "Complaint For Unlawful Detainer"*fn4 ("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.)

In her original Notice of Removal, defendant contended 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 ¶¶ 1, 8-9, Ex. B.) There is no indication that the demurrer was actually filed in the Superior Court, but defendant asserted that the Superior Court overruled the demurrer. (Id. ¶ 9.) However, in her Amended Notice of Removal, defendant now represents that she "did not respond to the complaint in state court." (Am. Notice of Removal ¶ 3.) It is unclear to the court whether defendant's Notice of Removal or Amended Notice of Removal contains a misrepresentation. In any event, however, the status of any demurrer filed 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 asserted that this court could exercise 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.*fn5 (Notice of Removal ¶ 8-9.)

As stated above, the undersigned recommended the remand of this case to the Superior Court on the ground that the court cannot exercise federal question jurisdiction over plaintiff's single unlawful detainer claim, regardless of a defense premised on the Protecting Tenants at Foreclosure Act of 2009. (See Order and Findings and Recommendations, Mar. 7, 2012, at 4-7.) On March 14, 2012, defendant filed her Amended Notice of Removal, which no longer asserts that this court can exercise federal question jurisdiction, but now asserts that the court can exercise diversity jurisdiction over plaintiff's claim. (See Am. Notice of Removal ¶¶ 4-6.) On March 16, 2012, defendant filed an Amended Answer and Counterclaim (Dkt. No. 6).

II. LEGAL STANDARDS GOVERNING REMOVAL

In relevant part, the federal removal statute provides:

(a) Generally.--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.

(b) Removal based on diversity of citizenship.--(1) In determining whether a civil action is removable on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded.

(2) A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is ...


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