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Tony Sickler and German Rojas v. Countrywide Financial Corporation


October 18, 2012


The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge


Tony Sickler and German Rojas ("Plaintiffs") seek removal of an unlawful detainer action filed in Kern County Superior Court. (Doc. 1). For the following reasons, the action is REMANDED to Kern County Superior Court.

1. Factual and Procedural History

On August 24, 2012, Plaintiffs purported to commence an action against Artes Bella Group; Countrywide Corporation; Financial Green Tree Servicing, LLC; Quality Loan Services Corps.; Jose Luis Prado; and Recontrust Co., N.A., in Case No. 12-cv-01393-LJO-JLT.*fn1 On September 20, 2012,

Plaintiffs filed a Notice of Removal of an unlawful detainer action, which contained a document from 2 the Kern County Superior Court indicating Artes Bellas Group had filed an action against Tony 3 Sickler and Karla Sanchez in Case No. S-1500-CL-270166. Accordingly, the Court issued an order to 4 remand the unlawful detainer action on September 24, 2012. 5

On October 15, 2012, Plaintiffs once again commenced the action now before the Court, by 6 removing Kern County Superior Court Case No. S-1500-CL-270166, to this Court. (Doc. 1 at 1). 7

Once again, the Court orders this matter remanded to the Kern County Superior Court. 8

II. Removal Jurisdiction

Pursuant to 28 U.S.C. § 1441(a), a defendant has the right to remove a matter to federal court where the district court would have original jurisdiction. Caterpillar, Inc. v. Williams, 482 U.S. 286, 392 (1987). Specifically, Except 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 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). District courts have "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Id. at § 1331.

A party seeking removal must file a notice of removal of a civil action within thirty days of receipt of a copy of the initial pleading. Id. at § 1446(b).Removal statutes are to be strictly construed, and any doubts are to be resolved in favor of state court jurisdiction and remand. See Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992).The party seeking removal bears the burden of proving its propriety. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996); Abrego v. Dow Chem. Co., 443 F.3d 676, 683-85 (9th Cir. 2006); see also Calif. ex. rel. Lockyer v. Dynegy, Inc., 2274 F.3d 831, 838 ("the burden of establishing federal jurisdiction falls to the party invoking the statute").If there is any doubt as to the right of removal, "federal jurisdiction must be rejected." Duncan, 76 F.3d at 1485.

The district court has "a duty to establish subject matter jurisdiction over [a] removed action sua sponte, whether the parties raised the issue or not."United Investors Life Ins. Co. v. Waddell & Reed, Inc., 360 F.3d 960, 967 (9th Cir. 2004); see also Kelton Arms Condo. Homeowners Ass'n v. 2 Homestead Ins. Co., 346 F.3d 1190, 1192-93 (9th Cir. 2003) (noting a distinction between procedural 3 and jurisdictional defects and holding that a "district court must remand if it lacks jurisdiction"). 4

Consequently, the Sixth Circuit explained that a court "can, in fact must, dismiss a case when it 5 determines that it lacks subject matter jurisdiction, whether or not a party has a filed a motion." Page 6 v. City of Southfield, 45 F.3d 128, 133 (6th Cir. 1995). 7

III. Discussion and Analysis

The determination of subject matter jurisdiction "is governed by the 'well-pleaded complaint 9 rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar, 482 U.S. at 392. Therefore, the complaint must establish "either that [1] federal law creates the cause of action or that [2] the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage Leasehold & Easement, 524 F.3d 1090, 1100 (9th Cir. 2008) (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983)).

Here, Plaintiffs have not provided a copy of the complaint filed by Artes Bella Group. Based upon the Court's records in Rojas v. Countrywide and the exhibits attached to the Complaint in this action, the Court surmises Plaintiff Tony Sickler is a defendant in the state court action for unlawful detainer. Plaintiffs attach a document dated September 11, 2012 to their complaint, which they allege demonstrates the unlawful detainer action was dropped. (Doc. 1 at 60). However, the document indicates on that Kern County Superior Court received an order transferring the action to the District Court. See id. Notably, the matter was remanded by this Court on September 24, 2012.

Previously, the Court explained an unlawful detainer action does not arise under federal law, but arises instead under state law. See Fannie Mae v. Suarez, 2011 U.S. Dist. LEXIS 82300, at *6 (E.D. Cal. July 27, 2011) ("Unlawful detainer actions are strictly within the province of state court"); Deutsche Bank Nat'l Trust Co v. Leonardo, 2011 U.S. Dist. LEXIS 83854, at *2 (C.D. Cal. Aug. 1, 2011) ("the complaint only asserts a claim for unlawful detainer, a cause of action that is purely a matter of state law"). Thus, the unlawful detainer claim does not invoke federal subject matter jurisdiction.

IV. Conclusion and Order

As discussed above, Plaintiffs have failed to demonstrate removal of the action is appropriate.

Because the Court does not have subject matter jurisdiction over the action for unlawful detainer, the 5 matter must be remanded. See 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears 6 that the district court lacks subject matter jurisdiction, the case shall be remanded"); see also Kelton Arms Condo. Homeowners Ass'n, 346 F.3d at 1192-93 ("district court must remand if it lacks 8 jurisdiction").

While under very limited circumstances it may be possible to remove a case that was previously remanded for lack of jurisdiction, Plaintiffs are advised that under no conceivable circumstances currently known to this Court, does it appear that this unlawful detainer action could be subject to removal to federal court. Plaintiffs are directed to not file any further notices of removal with respect to Kern County Superior Court Case No. S-1500-CL-270166. In the event that either Tony Sickler or German Rojas disregards this order, the Court will issue an order to show cause why sanctions should not be imposed.*fn2


1. The matter is REMANDED to the Superior Court of Kern County; and

2. The Clerk of Court is DIRECTED to close this matter, because this Order terminates the action in its entirety.


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