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Bank of America, N.A v. Eugene Schwartz

July 12, 2012


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


This case was removed to this court from the Shasta County Superior Court by the defendants, proceeding in propria persona. This action was referred to the undersigned for all proceedings pursuant to Eastern District of California Local Rules 302-304. Pending before the court is plaintiff's motion to remand (Doc. 3), set for hearing on July 18, 2012. Plaintiffs have not filed an opposition to the motion.

Pursuant to Eastern District of California Local Rules, any opposition "to the granting of the motion shall be in writing and shall be filed and served not less than fourteen (14) days preceding the noticed . . . hearing date." See Local Rule 230(c). The local rules further provide that "[n]o party will be entitled to be heard in opposition to a motion at oral arguments if opposition to the motion has not been timely filed by that party." Id. As defendants failed to file a timely opposition, they are not entitled to a hearing on this matter. In addition, the undersigned does not find a hearing necessary to resolve the issues raised in the motion. Accordingly, pursuant to Local Rule 230(g), the hearing scheduled for July 18, 2012, at 10:00 a.m. before the undersigned in Redding, California, is hereby taken off calendar.


This action was originally filed as an unlawful detainer action in the Superior Court of California, County of Shasta, on February 1, 2012. The action is based on California Code of Civil Procedure § 1161a. The complaint states the amount demanded does not exceed $10,000.00. Plaintiff alleges in the complaint that it is the owner of the property at issue, purchased at a trustee's sale following foreclosure. However, defendants have continued to possess the property without plaintiff's permission, even after being served with a written notice to quit. (Compl. for Unlawful Detainer (Complaint), attached to Notice of Removal (Doc. 1)).

On May 9, 2012, defendants filed the notice of removal, pursuant to 28 U.S.C. §§ 1331 and 1441, indicating that this court has jurisdiction over this action as it raises a federal question. It appears that defendants are attempting to alter the nature of this action through issues raised in the demurrer filed in the State court. In their answer, attached to their notice of removal, defendants claim an affirmative defense based on a wrongful foreclosure. No additional facts are presented, but it appears they are attempting to alter the issues in this case from those arising under California's unlawful detainer laws to those arising under federal law, from perhaps violations of the Federal Truth in Lending Act. In response to the notice of removal, plaintiff filed the pending motion for remand on June 7, 2012.

Motion for Remand

Plaintiff brings the motion for remand on the basis that this court lacks subject matter jurisdiction, either diversity or federal subject matter jurisdiction, and that this court should abstain from this action pursuant to Younger v. Harris, 401 U.S. 37, 49-53 (1971).

"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In order for a federal court to have jurisdiction over a specific action, the case must either arise under the Constitution or laws of the United States or involve citizens of different states where the amount in controversy exceeds $75,000. See 28 U.S.C. § 1331, 1332. "[I]t is well established that the plaintiff is 'master of her complaint' and can plead to avoid federal jurisdiction." Lowdermilk v. U.S. Bank Nat'l Ass'n, 479 F.3d 994, 997-98 (9th Cir. 2007) (citations omitted). "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). "The removal status 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) (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)).

In relevant part, the federal removal statue 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 . . . .

(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

28 U.S.C. § 1441(a), (b).

To the extent defendants base the removal of this action on this court's federal question jurisdiction, such jurisdiction does not exist. District courts have federal question jurisdiction over "all civil actions that arise under the Constitution, laws, or treaties of the United States." 28 U.S.C. ยง 1331. "A case 'arises under' federal law either where federal law creates the cause of action or 'where the vindication of a right under state law necessarily turn[s] on some construction of federal law.'" Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002) (modification in original) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 8-9 (1983)). "[T]he presence or absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Placer Dome, Inc., 582 F.3d at 1091. ...

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