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The Bank of New York Mellon v. Diana Moussaoui

February 27, 2013

THE BANK OF NEW YORK MELLON
v.
DIANA MOUSSAOUI, ET AL.



The opinion of the court was delivered by: Honorable John F. Walter, United States District Judge

CIVIL MINUTES -- GENERAL

Shannon Reilly

Courtroom Deputy

ATTORNEYS PRESENT FOR PLAINTIFFS:

None

None Present

Court Reporter

ATTORNEYS PRESENT FOR DEFENDANTS:

None

PROCEEDINGS (IN CHAMBERS): ORDER REMANDING ACTION TO LOS ANGELES

COUNTY SUPERIOR COURT

On August 13, 2012, Plaintiff The Bank of New York Mellon ("Plaintiff") filed a Complaint for Unlawful Detainer against Defendant Diana Moussaoui ("Defendant") in Los Angeles Superior Court. On January 8, 2013, Defendant filed a Notice of Removal, alleging that this Court has Federal courts are courts of limited jurisdiction, having subject matter jurisdiction only over matters authorized by the Constitution and Congress. See Bender v. Williamsport Area School , 475 U.S. 534, 541 (1986). "Because of the Congressional purpose to restrict the jurisdiction of the federal courts on removal, the statute is strictly construed, and federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Duncan v. , 76 F.3d 1480, 1485 (9th Cir. 1996) (citations and quotations omitted). There is a strong presumption that the Court is without jurisdiction unless the contrary affirmatively appears. See Fifty Associates v. Prudential Insurance Company of America, 446 F.2d 1187, 1190 (9th Cir. 1990). As the party invoking federal jurisdiction, Defendant bears the burden of demonstrating that removal is proper. See, e.g., Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992); Emrich v. Touche , 846 F.2d 1190, 1195 (9th Cir. 1988).

Defendant fails to meet her burden of demonstrating that removal is proper. Plaintiff's Complaint alleges one claim for unlawful detainer under state law. While Defendant alleges in her Notice of Removal that the claim arises under federal law, "[a]n unlawful detainer action does not raise a question arising under federal law and so, once removed, must be remanded for lack of jurisdiction." Cooper v. Washington Mut. Bank, 2003 WL 1563999, *2 (N.D. Cal. Mar. 19, 2003) (internal citation omitted). Accordingly, there is no federal question jurisdiction presented by Plaintiff's action.

In addition, although it is clear that a second removal petition may be appropriate in some circumstances, the Supreme Court has found that "a party is not entitled . . . to file a second petition for the removal upon the same grounds, where, upon the first removal by the same party, the federal court declined to proceed and remanded the suit . . ." St. Paul & C. Ry. Co. v. McLean, 108 U.S. 212 (1883) (emphasis added); see, also, Homestead Ins. Co. v. Casden Co., 234 Fed. App'x 434, 435 (9th Cir. 2007) ("Because Homestead's second removal petition, based on identical ยง 1447(c) ground as the prior removal, cannot reinvest jurisdiction, the district court lacked jurisdiction to entertain the action."); Barahona v. Orkin, 2008 WL 4724054, *2 (C.D. Cal. Oct. 28, 2008) ("Successive removals are allowed only where the second notice of removal is based on newly discovered facts not available at the time of the first removal."); Ross v. Guerrero, 2007 WL 586640, *1 (E.D. Cal. Feb. 26, 2007) ("[O]nce a case has been remanded, a second or successive removal on the same 'grounds' as the first is generally forbidden."); Olsen v. Found. Health Plan, 1999 WL 390842, *4 ...


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