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American Lender Servicing LLC v. Naqib Shokoor

July 17, 2012

AMERICAN LENDER SERVICING LLC, PLAINTIFF,
v.
NAQIB SHOKOOR, DEFENDANT.



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 San Joaquin ("Superior Court") (Dkt. No. 6).*fn1 This case was removed by Nina Qutan, who is not a named defendant, and although it is not clear, defendant Naqib Shokoor appears to have signed the Notice of Removal. (Notice of Removal at 6.) Neither Qutan not Shokoor filed an opposition to the 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 filings in this case, the undersigned recommends that plaintiff's motion to remand be granted and that this case be remanded to the Superior Court.

I. BACKGROUND

On March 12, 2012, plaintiff filed a verified unlawful detainer complaint in the Superior Court, naming Naqib Shokoor as the only defendant.*fn2 (Compl. at 1, attached to Notice of Removal.) Plaintiff seeks to recover possession of the subject residential property located in Tracy, California. (See Compl. ¶¶ 2, 12-13.) The complaint alleges that plaintiff is the owner of the property, having purchased the property "upon foreclosure against the defaulting defendants." (Id. ¶¶ 2, 6-7 & attached Trustee's Deed Upon Sale.) Plaintiff alleges that it perfected title in itself. (Id. ¶ 8.) According to the Notice of Removal filed by Qutan, "Defendant Naqib Shokoor was the former owner of the premises." (Notice of Removal ¶ 2.)

Plaintiff alleges that it served a written notice to quit the premises on defendant, and that the notice to quit expired on February 20, 2012. (Compl. ¶¶ 9-11 & attached "Three Day Notice to Quit.") Plaintiff alleges that defendant failed to timely vacate and deliver possession of the property and continues to possess and occupy the property. (Id. ¶¶ 11-12.)

While this case was proceeding in the Superior Court, Qutan intervened by filing a Prejudgment Claim of Right to Possession ("Claim Form"). (Notice of Removal ¶ 3 & attached "Prejudgment Claim of Right to Possession.") Qutan's Claim Form alleges that she has a "written rental agreement with the landlord." (Claim Form at 2.) Qutan asserts that by filing the Claim Form, she is a proper defendant who could remove this case to federal court. (Notice of Removal ¶¶ 3, 17.)

On June 1, 2012, Qutan removed this unlawful detainer action to federal court pursuant to 28 U.S.C. § 1441, asserting that this court has subject matter jurisdiction over plaintiff's claim on the basis of federal question jurisdiction, see 28 U.S.C. § 1331. (Notice of Removal at 1, and ¶ 5.) Specifically, Qutan asserts that this court has federal question jurisdiction based on the "'Protecting Tenants at Foreclosure Act 2009,' 12 U.S.C. § 5220, note," and contends that plaintiff failed to provide her with a sufficient 90-day notice to quit as required by that legislation. (See Notice of Removal ¶¶ 6-7, 9, 13.) As noted above, although nothing in the Notice of Removal clearly indicates that defendant joined in or consented to the removal, it appears that defendant signed the Notice of Removal.*fn3 (Notice of Removal at 6.)

On June 26, 2012, plaintiff filed an ex parte application to remand this case to the Superior Court, and the court subsequently set a hearing date and briefing schedule in regards to plaintiff's motion. (Order, June 28, 2012, Dkt. No. 7.) Neither defendant nor Qutan filed a timely written opposition or statement of non-opposition in regards to the motion to remand, in violation of this court's Local Rule 230(c).

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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