Wells Fargo, N.A. v. Preciado ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Wells Fargo Bank, N.A., its assignees Case No.: 19-cv-01257-AJB-LL and/or successors 12 ORDER: Plaintiff, 13 (1) GRANTING PLAINTIFF’S v. MOTION FOR REMAND; 14 Maribel Preciado; Ismael Rodriguez; and (2) DENYING DEFENDANT’S 15 DOES 1-10 inclusive, REQUEST TO PROCEED IN FORMA PAUPERIS; AND 16 Defendants. (3) FORBIDDING DEFENDANT 17 FROM REMOVING THIS ACTION 18 19 (Doc. Nos. 3, 6.) 20 Presently before the Court are Plaintiff Wells Fargo Bank, N.A.’s (“Plaintiff”) 21 motion to remand, (Doc. No. 6), and Defendant’s request to proceed in forma pauperis, 22 (Doc. No. 3). For the reasons herein, the Court GRANTS Plaintiff’s motion, DENIES 23 Defendant’s request to proceed in forma pauperis as moot, and REMANDS this action to 24 the San Diego Superior Court. 25 I. DISCUSSION 26 Congress has authorized a defendant to remove a civil action from state court to 27 federal court. 28 U.S.C. §1441. However, the removing party “always has the burden of 28 1 establishing that removal was proper.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 2 1992). The district court must remand any case previously removed from a state court “if 3 at any time before final judgment it appears that the district court lacks subject matter 4 jurisdiction.” 28 U.S.C. § 1447(c). Moreover, there is a strong presumption against removal 5 jurisdiction. Thus, doubts as to whether the federal court has subject matter jurisdiction 6 must be resolved in favor of remand. See Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 7 1996); see also Gaus, 980 F.2d at 566 (“Federal jurisdiction must be rejected if there is any 8 doubt as to the right of removal in the first instance.”). 9 Pursuant to 28 U.S.C. § 1446, a defendant must remove the action within thirty days 10 of receiving service of the summons and complaint. Here, the summons and complaint 11 were served on October 24 and October 25, 2018. (Doc. No. 6-2 at 5.) The removal was 12 not filed until July 9, 2019. (Doc. No. 1.) This is over eight months after the service of 13 summons and complaint. Therefore, the removal is untimely. 14 Furthermore, “[f]ederal jurisdiction typically exists only when a federal question is 15 presented on the face of the plaintiff’s properly pleaded complaint.” Valles v. Ivy Hill 16 Corp., 410 F.3d 1071, 1075 (9th Cir. 2005). Here, as the Court has previously held, there 17 is no federal question jurisdiction because the unlawful detainer complaint invokes 18 California law. (See generally Doc. No. 1-3.) The complaint filed in state court solely 19 concerns an unlawful detainer action under California law and, thus, presents no federal 20 question. See Aurora Loan Servs., LLC v. Montoya, No. 2:11-cv-2485-MCE-KJN-PS, 21 2011 WL 5508926, at *3 (E.D. Cal. Nov. 9, 2011) (“[P]laintiff filed its Complaint in 22 Superior Court asserting a single claim for unlawful detainer premised solely on California 23 law. Because a claim for unlawful detainer does not by itself present a federal question or 24 necessarily turn on the construction of federal law, no basis for federal question jurisdiction 25 appears on the face of the Complaint.”); see also Sage Home Mortg., LLC v. Roohan, No.: 26 17-cv-1409-AJB-JMA, 2017 U.S. Dist. LEXIS 118119, at *4–5 (S.D. Cal. July 27, 2017) 27 (holding federal jurisdiction does not exist when a complaint alleges a single claim for 28 unlawful detainer which is a California state law cause of action). Accordingly, federal 1 question jurisdiction does not exist. 2 Diversity jurisdiction is generally prohibited if any defendant is a citizen of the state 3 where the action is brought. 28 U.S.C. § 1441(b)(2). As the Court has previously held, 4 diversity jurisdiction also fails to provide this Court with jurisdiction because at least one 5 Defendant resides in California. (See Doc. No. 1-3 at 2.) Thus, this Court does not have 6 subject matter jurisdiction on diversity grounds. 7 Defendant also argues that removal is proper under 28 U.S.C. § 1443 because the 8 prosecution of the unlawful detainer action in state court has violated his civil rights. The 9 Ninth Circuit held: 10 A petition for removal under § 1443(1) must satisfy the two-part test articulated by the Supreme Court in Georgia v. Rachel, 384 11 U.S. 780, 788–92, 794–804 (1966) and City of Greenwood, Miss. 12 v. Peacock, 384 U.S. 808, 824–28 (1966). “First, the petitioners must assert, as a defense to the prosecution, rights that are given 13 to them by explicit statutory enactment protecting equal racial 14 civil rights.” California v. Sandoval, 434 F.2d 635, 636 (9th Cir. 1970). “Second, petitioners must assert that the state courts will 15 not enforce that right, and that allegation must be supported by 16 reference to a state statute or a constitutional provision that purports to command the state courts to ignore the federal 17 rights.” Id. 18 Patel v. Del Taco, Inc., 446 F.3d 996, 998–99 (9th Cir. 2006). Here, Defendant fails to 19 satisfy either part of this test. Defendant has not identified a state law preventing him from 20 raising his federal claims in state court nor has he shown the basis for an equally firm 21 prediction that he will be unable to protect his federal rights in state court. Accordingly, 22 removal is improper under 28 U.S.C. § 1443. 23 This Court does not have jurisdiction and accordingly, this Court GRANTS 24 Plaintiff’s motion to remand and DENIES Defendant’s IFP motion as moot. 25 II. CONCLUSION 26 Because Defendants cannot establish this Court has jurisdiction, removal was 27 improper. The Court GRANTS Plaintiff’s motion for remand, DENIES Defendant’s 28 request to proceed in forma pauperis as moot, and REMANDS this action to San Diego 1 Superior Court. This is the second time that Defendant has sought removal of Plaintiff's 2 || action. The first case, 19-cv-00361-AJB-LL, was remanded on the same basis as the current 3 || case. Based on this history, Defendant is ORDERED not to remove or attempt to remove 4 || this action again. If he does, he will be subject to sanctions, including Plaintiffs attorney 5 || fees, or contempt proceedings. 6 7 || IT IS SO ORDERED. 8 || Dated: December 3, 2019 | ZS iz : Le ? Hon. Anthony J.Battaglia 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28