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Putnam Investment, Inc v. R.E.F.S. Inc.

August 9, 2012

PUTNAM INVESTMENT, INC., PLAINTIFF,
v.
R.E.F.S. INC., ET AL,
DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER GRANTING MOTION TO REMAND (Document 10)

On June 22, 2012, Defendant EH National Bank fka Excel National Bank filed the instant Motion to Remand. Pursuant to Local Rule 230(g), the Court deemed the matter suitable for decision without oral argument.

BACKGROUND

Plaintiff Putnam Investment, Inc. ("Putnam"), filed this action on May 24, 2012, against Defendants EH National Bank fka Excel National Bank ("EH Bank") and R.E.F.S. Inc.*fn1 The action involves a $1.7 million dollar construction loan obtained from EH Bank and alleges state and federal causes of action for fraud, unfair debt collection practices, wrongful foreclosure, predatory lending, unfair business practices, and various violations of the California Commercial Code and California Civil Code. Putnam seeks monetary, declaratory relief and injunctive relief.

On May 25, 2012, Putnam filed a Notice of Removal, seeking to remove an action filed against it by EH Bank in Tulare County Superior Court into this existing action. EH Bank filed an unlawful detainer action against Putnam in Tulare County Superior Court in February 2012.*fn2

EH Bank filed a First Amended Complaint in Tulare County on March 8, 2012, stating a single cause of action for unlawful detainer ("Unlawful Detainer Action"). The First Amended Complaint was served on Putnam on March 6, 2012. Declaration of Reid H. Everett ("Reid Dec."), ¶ 3. Putnam initially filed a demurrer, which the Tulare County Court found to be "totally without merit." Exh. B., attached to Reid Dec. EH Bank then filed a motion for summary judgment and the Superior Court issued a tentative ruling granting the motion on May 25, 2012. Exh. C, attached to Reid Dec.

EH Bank filed this Motion to Remand the Unlawful Detainer Action on June 22, 2012. Putnam opposed the Motion on July 13, 2012, and EH Bank filed its reply on July 20, 2012.

DISCUSSION

A. Legal Standard

By statute Aany 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 party seeking to invoke federal jurisdiction bears the burden of establishing jurisdiction. See Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990).

B. Analysis

1. Improper Consolidation

The most obvious defect in Putnam's removal is its improper attempt to remove the action into the existing federal action. Even assuming that this Court has jurisdiction over the Unlawful Detainer Action, which it does not, the procedurally proper method would have been to remove the action and then move to consolidate it with, or relate it to, the federal action. Fed. R. Civ. Proc. 42. Putnam ...


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