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Federal National Mortgage Association v. Maria C. Nolasco

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


October 12, 2012

FEDERAL NATIONAL MORTGAGE ASSOCIATION,
PLAINTIFF,
v.
MARIA C. NOLASCO, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Paul S. Grewal United States Magistrate Judge

ORDER REASSIGNING CASE TO A U.S. DISTRICT JUDGE; REPORT AND RECOMMENDATION (Re: Docket No. 4)

United States District Court For the Northern District of California

Defendant Maria C. Nolasco's ("Nolasco") proceeding pro se applies to proceed in forma 18 pauperis. Having reviewed the papers, 19

IT IS HEREBY ORDERED that the case be reassigned to a District Judge with the 20 recommendation that the IFP be denied.*fn1 21 22

2 of subject matter or diversity jurisdiction.

4 discretion of the trial court.*fn2 It is the court's duty to examine any IFP application "to determine 5 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 6 the court is bound to deny a motion seeking leave to proceed in forma pauperis."*fn3 Moreover, a 7 federal court must dismiss a case such as this if the court determines that the case is: (1) frivolous; 8

(2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a 9 defendant who is immune from such relief.*fn4

11 unlawful detainer action to federal court lacks merit because this court has neither subject matter

IT IS FURTHER RECOMMENDED that the case be remanded to state court based on lack Granting or refusing permission to proceed in forma pauperis is a matter within the sound

Here, Nolasco's removal of Plaintiff Federal National Mortgage Association's ("FNMA")

United States District Court For the Northern District of California

nor diversity jurisdiction over Nolasco's claims. It is well-settled that federal courts do not have 13 federal question jurisdiction over unlawful detainer actions, where federal law does not create the 14 cause of action and Nolasco's right to relief does not depend on a resolution of a question of 15 federal law.*fn5 Although Nolasco challenges the constitutionality of California foreclosure and 16 unlawful detainer law in a separately filed "notice of claim unconstitutionality," "removability 17 cannot be created by defendant pleading a counter-claim presenting a federal question."*fn6 Because 18 the complaint on its face presents no federal question, and federal jurisdiction cannot be 19 bootstrapped by the pleading of a defense or counterclaim, the court finds that the unlawful 20

detainer action must be remanded to determination by the state court. The court further finds no 2 diversity jurisdiction based on FNMA's unlawful detainer action, which was filed in the superior 3 court as a case of "limited civil jurisdiction" amounting to less than $10,000 in controversy. 4

In sum, the undersigned finds that there is no basis for jurisdiction over FNMA's unlawful 5 detainer action in this court and therefore no basis on which to grant Nolasco's IFP application. 6

IT IS SO ORDERED.

United States District Court For the Northern District of California


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