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Bank of New York Mellon v. Vo

United States District Court, N.D. California, San Jose Division

February 12, 2015

HONG XUAN VO, QUI VAN VO, and DOES 1 to 6, inclusive, Defendants.


LUCY H. KOH, District Judge.

Before the Court is a Motion to Remand filed by The Bank of New York Mellon ("Plaintiff"). ECF No. 8 ("Mot."). Hong Xuan Vo and Qui Van Vo ("Defendants"), who are proceeding pro se, have not filed an Opposition. The Court finds this motion suitable for decision without oral argument pursuant to Civil Local Rule 7-1(b) and hereby VACATES the motion hearing and initial case management conference set for February 19, 2015, at 1:30 p.m. Having considered the parties' submissions, the relevant law, and the record in this case, the Court GRANTS Plaintiff's Motion to Remand.


On August 28, 2014, Plaintiff purchased the subject residential real property located at 4997 Gardenside Place, San Jose, California 95138 ("Property") at a trustee's sale following foreclosure proceedings. ECF No. 8-2 Ex. B ("Compl.") ¶¶ 1, 5. Plaintiff recorded the Trustee's Deed Upon Sale (the "Deed") on September 9, 2014. ECF No. 8-2 Ex. A.[1] On September 17, 2014, Defendants were served with a three-day quit notice (the "Notice"). Compl. ¶ 6. Despite the Notice's expiration, Defendants remain in possession of the Property. Id. ¶ 7.

As a result, Plaintiff filed an unlawful detainer action in Santa Clara County Superior Court on September 30, 2014. See Compl. The state court complaint alleges a single cause of action: unlawful detainer. See id. The complaint also states that the amount demanded by Plaintiff does not exceed $10, 000.00. See id. On October 8, 2014, Defendants were served with copies of the summons and complaint. ECF No. 8-2 Ex. C.

On November 19, 2014, Defendants removed the unlawful detainer action to federal court. ECF No. 1. In their Notice of Removal, Defendants indicate that they have filed counterclaims against Plaintiff for, inter alia, wrongful foreclosure, breach of contract, and intentional misrepresentation. Id. ¶ 1. Some of these counterclaims, Defendants appear to allege, arise under the federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Id. ¶¶ 2, 4.

On December 10, 2014, Plaintiff filed the instant Motion to Remand. Mot. at 8. That same day, Plaintiff filed an Application to Shorten Time for the motion hearing. ECF No. 10. Defendants, who are pro se, have not opposed either motion, which are now ripe for resolution by the Court.


A suit may be removed from state court to federal court only if the federal court would have had subject matter jurisdiction over the case. 28 U.S.C. § 1441(a); see Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) ("Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant."). "In civil cases, subject matter jurisdiction is generally conferred upon federal district courts either through diversity jurisdiction, 28 U.S.C. § 1332, or federal question jurisdiction, 28 U.S.C. § 1331." Peralta v. Hispanic Bus., Inc., 419 F.3d 1064, 1068 (9th Cir. 2005). If it appears at any time before final judgment that the federal court lacks subject matter jurisdiction, the federal court must remand the action to state court. 28 U.S.C. § 1447(c).

The party seeking removal bears the burden of establishing federal jurisdiction. Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). "The removal statute is strictly construed, and any doubt about the right of removal requires resolution in favor of remand." Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).


Plaintiff argues that the Court has neither diversity jurisdiction nor federal question jurisdiction over the instant case. Mot. at 5-7. The Court agrees.

To start, the Court does not have federal question jurisdiction over this matter. Under 28 U.S.C. § 1331, federal courts have original jurisdiction over civil actions "arising under the Constitution, laws, or treaties of the United States." Federal question jurisdiction "is determined (and must exist) as of the time the complaint is filed and removal is effected." Strotek Corp. v. Air Transp. Ass'n of Am., 300 F.3d 1129, 1131 (9th Cir. 2002). Removal pursuant to section 1331 is governed by the "well-pleaded complaint rule, " which provides that federal question jurisdiction exists only when "a federal question is presented on the face of plaintiff's properly pleaded complaint." Caterpillar, 482 U.S. at 392.

Defendants have made no such showing here. Plaintiff's complaint in the unlawful detainer action does not assert any claim that arises under federal law. See Compl. ¶¶ 1-10. That Defendants advance certain counterclaims arising under the federal FDCPA is of no moment because the Court must look only to the face of plaintiff's properly pleaded complaint. See Caterpillar, 482 U.S. at 393 (explaining that "it is now settled law that a case may not be removed to federal court on the basis of a federal defense"). As a result, federal question jurisdiction does not lie over this action. See, e.g., LNV Corp. v. Randle, No. EDCV 14-0082 JGB, 2014 WL 176742, at *1-2 (C.D. Cal. Jan. 15, 2014) (granting motion to remand plaintiff's unlawful detainer action even though pro se defendants had invoked the federal FDCPA in response); Bank of N.Y. Mellon v. Hernandez, No. C-12-00767 DMR, 2012 WL 2375096, at *1 (N.D. Cal. June 22, 2012) (same); see also ...

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