United States District Court, C.D. California
PRESENT: THE HONORABLE FERNANDO M. OLGUIN, UNITED STATES
CIVIL MINUTES - GENERAL
(In Chambers) Order Remanding Action
August 15, 2017, Grace Shin (“plaintiff”) filed a
Complaint in the Los Angeles County Superior Court against
Ocwen Loan Servicing LLC (“Ocwen”), and Barrett
Daffin Frappier Treder & Weiss (“Barrett”)
(collectively, “defendants”) related to
foreclosure proceedings. (See Dkt. 1, Notice of
Removal (“NOR”) at ¶ 1 & Exhibit
(“Exh.”) 1 (“Complaint”)). On October
6, 2017, Ocwen removed that action on diversity jurisdiction
grounds pursuant to 28 U.S.C. §§ 1332 and 1441.
(See Dkt. 1, NOR at ¶ 2). Having reviewed the
pleadings, the court hereby remands this action to state
court for lack of subject matter jurisdiction. See
28 U.S.C. § 1447(c).
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute[.]”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377, 114 S.Ct. 1673, 1675 (1994). The courts are
presumed to lack jurisdiction unless the contrary appears
affirmatively from the record. See DaimlerChrysler Corp.
v. Cuno, 547 U.S. 332, 342 n. 3, 126 S.Ct. 1854, 1861
(2006). Federal courts have a duty to examine jurisdiction
sua sponte before proceeding to the merits of a
case, see Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 583, 119 S.Ct. 1563, 1569 (1999), “even in the
absence of a challenge from any party.” Arbaugh v.
Y&H Corp., 546 U.S. 500, 501, 126 S.Ct. 1235, 1237
general, “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 the
defendants, to the district court[.]” 28 U.S.C. §
1441(a). A removing defendant bears the burden of
establishing that removal is proper. See Gaus v. Miles,
Inc., 980 F.2d 564, 566-67 (9th Cir. 1992) (“The
strong presumption against removal jurisdiction means that
the defendant always has the burden of establishing that
removal is proper.”) (internal quotation marks
omitted); Abrego Abrego v. The Dow Chem. Co., 443
F.3d 676, 684 (9th Cir. 2006) (per curiam) (noting
the “longstanding, near-canonical rule that the burden
on removal rests with the removing defendant”).
Moreover, if there is any doubt regarding the existence of
subject matter jurisdiction, the court must resolve those
doubts in favor of remanding the action to state court.
See Gaus, 980 F.2d at 566 (“Federal
jurisdiction must be rejected if there is any doubt as to the
right of removal in the first instance.”). Indeed,
“[i]f at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the
case shall be remanded.” 28 U.S.C. § 1447(c);
see Kelton Arms Condo. Owners Ass'n, Inc. v.
Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003)
(“Subject matter jurisdiction may not be waived, and,
indeed, we have held that the district court must remand if
it lacks jurisdiction.”); Washington v. United
Parcel Serv., Inc., 2009 WL 1519894, *1 (C.D. Cal. 2009)
(a district court may remand an action where the court finds
that it lacks subject matter jurisdiction either by motion or
court's review of the NOR and the attached state court
Complaint makes clear that this court does not have subject
matter jurisdiction over the instant matter. In other words,
plaintiff could not have originally brought this action in
federal court, as plaintiff does not competently allege facts
supplying diversity jurisdiction. Therefore, removal was
improper. See 28 U.S.C. § 1441(a);
Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107
S.Ct. 2425, 2429 (1987) (“Only state-court actions that
originally could have been filed in federal court may be
removed to federal court by the defendant.”) (footnote
federal subject matter jurisdiction is predicated on
diversity of citizenship pursuant to 28 U.S.C. §
1332(a), complete diversity must exist between the opposing
parties. See Caterpillar Inc. v. Lewis, 519 U.S. 61,
68, 117 S.Ct. 467, 472 (1996) (stating that the diversity
jurisdiction statute “applies only to cases in which
the citizenship of each plaintiff is diverse from the
citizenship of each defendant”). Plaintiff appears to
be a citizen of California. (See Dkt. 1-1, Complaint
at ¶¶ 6-15; Dkt. 1, NOR at ¶ 3a). Ocwen has
shown that it is a citizen of Florida. (See Dkt. 1,
NOR at ¶ 10). However, as Ocwen concedes, Barrett is a
citizen of California. (See Id. at ¶ 3c). Thus,
complete diversity does not exist.
contends that Barrett's citizenship is irrelevant for
jurisdiction purposes because Barrett is a nominal party that
has filed a declaration of nonmonetary status in state court
pursuant to California Civil Code § 29241. (See
Dkt. 1, NOR at ¶ 3c). Ocwen's contention is
unpersuasive. As one court stated:
A defendant's declaration of nonmonetary status, which
excuses a party from active participation in the case, is not
conclusive. A timely objection, or even facts which arise
during discovery, are allowed to show the defendant was not
entitled to nonmonetary status. . . . [E]ven if a
defendant's nonmonetary status declaration remains
unchallenged for the duration of the action, the defendant is
bound by the nonmonetary terms of the judgment.
Sublett v. NDEX West, LLC, 2011 WL 663745, *2 (S.D.
Cal. 2011) (citation omitted); see also Hershcu
v. Wells Fargo Bank, N.A., 2012 WL 439698, *2 (S.D. Cal.
2012) (“The citizenship of [defendant] may not be
ignored for diversity purposes because it has filed a
Declaration of Non-Monetary Status.”). Thus, the filing
of a declaration of nonmonetary status does not render
Barrett a nominal party.
Barrett is not a nominal party, its citizenship is considered
in the determination of diversity jurisdiction. Thus, there
was no diversity jurisdiction over this action at the time of
removal because both plaintiff and Barrett are citizens of
order is not intended . Nor is it intended to be included in
or submitted to any ...