Opinion
3:24-cv-00978-AR
07-03-2024
DOROTHY ELIZABETH LEWIS, Plaintiff, v. PHH MORTGAGE CORPORATION, Successor by merger to Ocwen Loan Servicing, LLC ("PHH"), and WELLS FARGO BANK N.A., as Trustee for the Registered Holders of Structured Asset Securities Corporation Mortgage Pass- Through Certificate, Series 2007-OSI ("the Trust"), Defendants.
FINDINGS AND RECOMMENDATION
ARMISTEAD, MAGISTRATE JUDGE
Plaintiff Dorothy Elizabeth Lewis, representing herself, filed a lawsuit in Multnomah County Circuit Court against defendants PHH Mortgage Corporation and Wells Fargo Bank N.A., asserting adverse possession. (Notice of Removal, ECF No. 1-1 at 10.) Lewis alleges that she is the rightful owner of real property located at 5272 NE 20th Ave., Portland, OR 97211 (the property). After her attempts to obtain a Default Order against defendants in state court failed, Lewis removed her lawsuit to this court. As explained below, because Lewis improperly removed this lawsuit and the court lacks jurisdiction, her lawsuit should be remanded to state court.
BACKGROUND
On December 1, 2023, Lewis filed her adverse possession lawsuit in state court after an incident at the property around Thanksgiving 2023. Lewis contends that she has lived at the property for more than 10 years, has paid all utilities, and that defendants obtained rights in the property by fraud or robbery. Through her lawsuit, Lewis seeks to have any liens placed by defendants removed and her title to the property restored. (Notice of Removal, ECF No. 1-1 at 11.)
On January 12, 2024, defendants' attorney, Emilie Edling of Houser LLP, filed a Notice of Appearance in state court. That day, Edling also sent Lewis a letter informing her that Houser LLP represents defendants in the lawsuit and requesting that the law firm be given 10 days' notice before Lewis sought to obtain a default, as provided by Oregon Rule of Civil Procedure 69. (Notice of Removal, ECF No. 1-1 at 35-36.)
According to Lewis, she sent defendants notice in March and April of her intent to pursue default. (Notice of Removal, ECF No. 1-1 at 18-22.) Because defendants did not respond to those notices, Lewis went to “Ex Parte Court” on June 11 and informed the presiding judge, Judith Matarazzo, that a Notice of Appearance had not been filed in state court and that default was appropriate. Lewis states that Judge Matarazzo agreed to sign the Default Order. (Notice of Removal, ECF No. 1 at 2.)
Six days later, Lewis again sought a default ex parte, and Judge Matarazzo then asked for Lewis's email address so that information about the proper procedures could be provided. Lewis was confused and refused to provide her email to court staff. The next day, Lewis attended Ex Parte Court a third time, and Judge Matarazzo informed Lewis that her request for a default was given to the Civil Department, that it would “work itself through the system,” and that her motion would be at the back of the line. (Notice of Removal, ECF No. 1 at 2.)
Lewis then removed her lawsuit to this court, contending that she is not receiving equal treatment under the U.S. Constitution and requesting damages and attorney fees. (Id. at 3.) In the Civil Cover Sheet, Lewis does not specify the basis of this court's jurisdiction and indicates that her cause of action is equal treatment under the U.S. Constitution, which this court construes as asserting an equal protection claim under the Fourteenth Amendment. Lewis further lists 28 U.S.C. § 1332 as the statute under which she brings this lawsuit. Finally, Lewis identifies a related case previously filed in this district entitled Lewis v. Wells Fargo Bank N.A., Case No. 3:22-cv-01540-IM. (Notice of Removal, ECF No. 1-2 at 1.)
LEGAL STANDARDS
The United States Constitution and federal law allow only certain kinds of cases in federal court. That limited authority of a federal court is known as its subject matter jurisdiction, and, if a federal court does not have subject matter jurisdiction for a case, the court must dismiss it (in other words, put the case out of its consideration). See Adkison v. C.I.R., 592 F.3d 1050, 1055 (9th Cir. 2010) (subject matter jurisdiction “refers to a tribunal's power to hear a case”). The two kinds of cases for which a federal court has jurisdiction are (1) “federal question” cases and (2) “diversity of citizenship” cases. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). This limited jurisdiction is different from Oregon circuit courts, which have subject matter jurisdiction over all actions unless a statute or law divests them of jurisdiction. Owen v. City of Portland, 368 Or. 661, 684 (2021) (“Oregon circuit courts ‘ha[ve] general jurisdiction, to be defined, limited, and regulated by law in accordance with th[e Oregon] Constitution.' Or Const, Art VII (Original), § 1.”).
The court has an independent obligation to examine whether it has subject matter jurisdiction before deciding any issue on the merits. Valdez v. Allstate Ins., 372 F.3d 1115, 1116 (9th Cir. 2004). This obligation extends to removal jurisdiction and requires the court to “remedy the improvident grant of removal by remanding the action to state court.” California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2003), as amended, 387 F.3d 966 (2004); 28 U.S.C. § 1447(c) (providing that the case must be remanded if district court lacks subject matter jurisdiction); see Jacobsen v. Oregon, No. CV-10-115-ST, 2010 WL 1558570, at *1-2 (D. Or. Feb. 24, 2010) (remanding case to state court sua sponte for lack of jurisdiction) adopted, 2010 1558567 (Apr. 15, 2010). “The removal statute is strictly construed against removal jurisdiction, and the burden of establishing federal jurisdiction falls to the party invoking the statute.” Lockyer, 375 F.3d at 383 (citation omitted).
Under 28 U.S.C. § 1441, when a case is filed in state court, but a federal court also may have jurisdiction because that case alleges a federal question or complete diversity between the parties exists, it may be removed from the state court and be lodged in federal court. 28 U.S.C. § 1441(a) (“Except as 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 the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.”). The right to remove a case from state court to federal court, however, is vested exclusively with a defendant or defendants. Progressive W. Ins. Co. v. Preciado, 479 F.3d 1014, 1017-18 (9th Cir. 2007) (holding that plaintiff/cross-defendant was not a “defendant” for removal purposes) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107-08 (1941)). And removal is proper only if the action might have been filed in federal court in the first instance as determined on the face of the plaintiff's complaint. 28 U.S.C. § 1441(a).
DISCUSSION
Lewis has improperly removed her lawsuit from state to federal court, for two reasons. First, as plaintiff, she does not possess the right to remove her lawsuit from state to federal court. That right belongs to defendants alone. See Sharma v. HIS Asset Loan Obligation Tr. 2007-1, 23 F.4th 1167, 1169 (9th Cir. 2022) (“The text of 28 U.S.C § 1441(a) authorizes only a “defendant or the defendants” to remove an action to federal court.”); Lenai v. People's Choice Lending, Case No. 2:23-cv-05574-MEMF-AFM, 2024 WL 140433, at *3 (C.D. Cal. Jan. 10, 2024) (“[A] plaintiff has no right to remove an action that the plaintiff chose to file in state court.”); Touch v. Cox Auto. Corp. Servs., LLC, Case No. 2:23-cv-01848-TLN-KJN, 2023 WL 5628736, at *1 (E.D. Cal. Aug. 31, 2023) (“Put simply, a plaintiff “cannot remove an action to federal court.”). Because the right of removal is vested exclusively in defendants, Lewis lacked the right to remove her lawsuit to this court.
Second, this court lacks subject matter jurisdiction over Lewis's lawsuit. Although Lewis asserts that she is not receiving equal treatment in state court, those allegations are contained within her Notice of Removal and associated documents - not her underlying complaint filed in state court. Her state court complaint alleges a single claim for adverse possession, and therefore, fails to present a federal question. 28 U.S.C. § 1331 (stating that district courts have federal question jurisdiction over actions arising from violations of the federal constitution, federal statutes, or federal treaties). Lewis's state court complaint also does not allege the citizenship of defendants, or an amount in controversy and, therefore, diversity jurisdiction is lacking. 28 U.S.C. § 1332(a) (providing that to establish diversity jurisdiction, plaintiff must plausibly allege that damages exceed $75,000, that she is a citizen of one state, and all the defendants are citizens of other states). Because Lewis's complaint could not have been filed in federal court in the first instance, the court lacks subject matter jurisdiction.
As noted above, Lewis previously filed an action in this court against the same defendants, Wells Fargo and PHH Mortgage, stemming from a foreclosure action involving the same property. Lewis v. Wells Fargo Bank N.A., Case No. 3:22-cv-01540-IM. In that case, Lewis alleged that Wells Fargo and PHH violated her First, Fifth, and Fourteenth Amendment rights when they foreclosed on the property and pursued state court eviction proceedings when she refused to leave. Lewis asserted that Wells Fargo and PHH obtained their rights in the property by fraud and robbery. (Order Granting Mot. Dismiss at 2-4, ECF No. 20.) District Judge Immergut observed that a state court had already determined that Wells Fargo and PHH had the right to foreclose on the property when a judgment of foreclosure was entered on September 9, 2013. Given that history, Judge Immergut concluded, Lewis's claims were an invitation to revisit that earlier state court judgment and that the court lacked jurisdiction under Rooker-Feldman. (Id. at 5-6 (citing Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 858-59 (9th Cir. 2008) (holding that a federal action is an improper appeal of a state court judgment where “the claims raised in the federal court action are inextricably intertwined with the state court's decision such that the adjudication of the federal claims would undercut the state ruling,” the federal court lacks subject matter jurisdiction under Rooker-Feldman to determine the plaintiff's claims) (simplified)). Lewis has appealed that Order to the Ninth Circuit, where it remains pending. (ECF No. 23.) Because plaintiff does not have the right to remove, and the court lacks subject matter jurisdiction, the court need not address whether other bases for sua sponte remand exist.
In short, Lewis has no right to remove her lawsuit from state court to federal court, and this court lacks subject matter jurisdiction. Accordingly, strictly construing the removal statute, sua sponte remand is warranted. 28 U.S.C. § 1447(c).
CONCLUSION
For the reasons stated above, this case should be sua sponte remanded to Multnomah County Circuit Court because it was improperly removed and the court lacks subject matter jurisdiction.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 14 days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within 14 days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.