From Casetext: Smarter Legal Research

U.S. Bank National Association as Trustee v. Garcia

United States District Court, E.D. California
Dec 7, 2010
No. CIV S-10-1623 LKK GGH PS (E.D. Cal. Dec. 7, 2010)

Opinion

No. CIV S-10-1623 LKK GGH PS.

December 7, 2010


FINDINGS RECOMMENDATIONS


Defendant Jamie Garcia, proceeding pro se, was adjudged in criminal contempt by the district court on October 27, 2010 for his failure to appear as ordered. A warrant for his arrest is currently outstanding. Remaining in this action is plaintiff U.S. Bank's application for remand to state court, filed July 28, 2010.

Defendant Garcia's co-defendants are Rafael Sierra and Rosalie Lopez, but they did not participate in the notice of removal.

Garcia's outstanding request to proceed in forma pauperis will not be addressed as the court recommends that this case be remanded to state court.

The case has been referred to this court by Local Rule 72-302(21), pursuant to 28 U.S.C. § 636(b)(1).

BACKGROUND

Some of the background is repeated from this court's previous findings and recommendations, filed September 3, 2010, recommending that defendant be adjudged in contempt of court.

Defendant Garcia was sued in state court in an unlawful detainer action for his refusal to make monetary payments on the subject foreclosed real property since November 3, 2008. In response, defendant Garcia has filed the instant petition for removal, alleging discrimination through plaintiff's failure to provide him with 90 days notice to quit. Garcia asserts federal question jurisdiction, and seeks removal based on the aforementioned ground.

U.S. Bank filed the instant motion for remand and for sanctions, alleging that this defendant previously removed the state court action to the federal court in the Northern District, which remanded it back to state court on May 28, 2010. Plaintiff asserts that defendant's second attempt to remove the case warrants Rule 11 sanctions in the amount of $975.00.

Although U.S. Bank's papers repeatedly refer to a prior removal to "this" court, the court's own research indicates that Garcia previously removed the state court action to the Northern District. See U.S. Bank v. Garchia, Civ. 10-785 SI.

On August 13, 2010, this court issued an order to defendant Garcia to show cause why he should not be sanctioned as requested by plaintiff, and enjoined from further removing the state court action to any federal court, based on his prior removal of the same state court action to the Northern District. Garcia was ordered to file a response to the order by August 26, 2010, and to personally appear at the September 2, 2010 hearing. U.S. Bank's counsel, Kajal Islam, appeared telephonically. Garcia did not file a response and made no appearance.

The proposed sanction of an injunction was on the court's own motion based on Garcia's apparent bad faith effort to delay the state court unlawful detainer case.

In a previous opinion, the undersigned found that defendant previously removed the same state court action to the Northern District of California. See U.S. Bank National Association as Trustee v. Garcia, Civ. 3:10-0785 SI. On May 28, 2010, the Northern District remanded the case to the Superior Court for the County of Sacramento for lack of subject matter jurisdiction. The instant action is the second time that Garcia has attempted to remove the same state court action to a federal court. Garcia did not respond in writing or personally appear at the September 2, 2010 hearing, as required by the order to show cause, filed August 13, 2010. That order warned Garcia that his failure to personally appear at the sanctions hearing would be considered contempt of court and would be cause for further sanctions, including the possibility of incarceration. At the September 2, 2010 hearing, the undersigned noted on the record that it intended to certify facts and recommend contempt to the district judge. The undersigned also stated his intent to grant U.S. Bank's request for monetary sanctions, and to recommend an injunction to prevent Garcia from further removal of the state court action.

A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).

On September 3, 2010, the undersigned referred the case to the district judge, recommending that Garcia be adjudged in contempt. The matter was set for hearing on October 25, 2010, before the district court, and Garcia was served with the order and findings and recommendations which warned him that a consequence of not appearing at the hearing might result in a warrant for his arrest. Garcia did not appear at the hearing, and on October 27, 2010, Judge Karlton issued an order adjudging Garcia in criminal contempt and sentencing him to five days in prison. The sentence was stayed until November 8, 2010 when Garcia was again ordered to appear. Garcia was advised one more time that failure to appear would result in a warrant for his arrest. When Garcia did not appear at the November 8, 2010 hearing, the court issued an arrest warrant. That warrant is outstanding.

DISCUSSION

I. Jurisdiction

Although there are criminal contempt proceedings ongoing before the district court, the undersigned may dispose of the outstanding matters pending in this case without affecting those proceedings. In fact, dismissal or remand of this action will not affect the contempt proceedings as they are considered collateral and may be dealt with after an action is no longer pending. Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 396, 110 S.Ct. 2447, 2456 (1990). A criminal contempt proceeding is "a separate and independent proceeding at law," not part of the original action because it is not dependent on a certain outcome on the merits of that action.Bray v. United States, 423 U.S. 73, 75-76, 96 S.Ct. 307, 309 (1975). Such contempt proceedings survive even where the order has been set aside on appeal or the original action has become moot. Id. at 76, 310, citing Gompers v. Bucks Stove Range Co., 221 U.S. 418, 319 S.Ct. 492 (1911). Even where orders expire or are set aside, "convictions for criminal contempt intervening before that time may stand." United States v. United Mine Workers of America, 330 U.S. 258, 294, 67 S.Ct. 677, 696 (1947). See also Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 396, 110 S.Ct. 2447, 2456 (1990) (holding that "[a] court may make an adjudication of contempt and impose a contempt sanction even after the action in which the contempt arose has been terminated"). The reasoning is that contempt is similar to costs, attorney's fees, and Rule 11 sanctions in that a decision on these matters does not amount to a judgment on the merits of the action. Instead, contempt concerns the collateral issue of whether there has been abuse of the judicial process. Id.

Based on this authority, pending matters in this case may be determined at the present time, including the possibility of dismissal or remand, without affecting the criminal contempt proceedings.

II. Remand

Garcia filed the notice of removal on the ground that the complaint does not address his claim of discrimination by U.S. Bank in failing to provide him with a 90 day notice to quit. Garcia cites various sections of the "Helping Families Save Their Homes Act of 2009," in the petition, but he has not filed a response to U.S. Bank's petition for remand.

A district court has an independent duty to examine its own jurisdiction and remand a removed action "since removal is permissible only where original jurisdiction exists at the time of removal or at the time of the entry of final judgment. . . ."Sparta Surgical Corp. v. National Ass'n. of Securities Dealers, Inc., 159 F.3d 1209, 1211 (9th Cir. 1998), quoting Lexecon, Inc. v. Milberg Weiss Bershad Hynes Lerach, 523 U.S. 26, 43, 118 S. Ct. 956, 966 (1998); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 229, 110 S. Ct. 596, 606-07 (1990); Harris v. Provident Life and Acc. Ins. Co., 26 F.3d 930, 932 (9th Cir. 1994).

Removal jurisdiction statutes are strictly construed against removal. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). "The burden of establishing federal jurisdiction falls on the party invoking removal." Harris v. Provident Life and Accident Ins. Co., 26 F.3d 930 (9th Cir. 1994) (quoting Gould v. Mut. Life Ins. Co. of New York, 790 F.2d 769, 771 (9th Cir. 1986)).

Garcia invokes the court's jurisdiction under 28 U.S.C. § 1331. A plaintiff may bring suit in federal court if his claim "arises under" federal law. 28 U.S.C. § 1331. In that situation, the court has original jurisdiction. A defendant cannot invoke the federal court's original jurisdiction. But he may in some instances invoke the court's removal jurisdiction. The requirements to invoke removal jurisdiction are often identical to those for invoking its original jurisdiction. The requirements for both relate to the same end, that is, federal jurisdiction.

Removal of a state court action is proper only if it originally could have been filed in federal court. 28 U.S.C. § 1441. "[F]ederal courts have jurisdiction to hear, originally or by removal, only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action, or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S. Ct. 2841, 2855-56 (1983). Mere reference to federal law is insufficient to permit removal. See Smith v. Industrial Valley Title Ins. Co., 957 F.2d 90, 93 (3d Cir. 1992). A defense to an action, based on constitutional rules of general applicability, is not a sufficient basis to remove an action to federal court. See id.;Berg v. Leason, 32 F.3d 422, 426 (9th Cir. 1994) ("[N]either an affirmative defense based on federal law . . . nor one based on federal preemption . . . renders an action brought in state court removable."). Defendant has not shown that he is unable to raise his federal constitutional rights in state court.

This court has no jurisdiction over unlawful detainer actions which are strictly within the province of state court. Garcia's apparent attempt at creating federal subject matter jurisdiction by simply adding claims and defenses to a petition for removal will not succeed, especially in light of his prior removal history. See McAtee v. Capital One, F.S.B., 479 F.3d 1143, 1145 (9th Cir. 2007) (even previously asserted counterclaims raising federal issue will not permit removal).

Accordingly, the court finds that remand is appropriate because the case is not one which arises under federal law. Pursuant to 28 U.S.C. § 1447(c), where it appears the court lacks subject matter jurisdiction, the court shall make an order for remand. The petition for removal and the state court record filed in this case demonstrate that the underlying proceedings are not removable to this court.

III. Sanctions

Rule 11 provides that a pleading filed with the court "certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances," it is not presented for an improper purpose, the claims are warranted by existing law or an argument to modify the law that is non-frivolous, and the factual allegations will have evidentiary support. Fed.R.Civ.P. 11(b). The court may, on its own initiative, order a party to show cause why specified conduct does not violate Rule 11. Id., (c)(3).

As set forth above, Garcia previously removed the same state court action to the Northern District of California. The Northern District's remand of the case to the Superior Court for the County of Sacramento put Garcia on notice that removal was improper. Nonetheless, Garcia removed the action again, but removed it to this court instead. Garcia had the opportunity to respond to the Bank's motion for remand and for sanctions, but declined to do so. Garcia did not appear at the hearing on the matter, did not appear at the contempt hearing before the district judge, and did not appear at the second hearing before the district court. Garcia has filed no response to any orders issued in this case. Without other explanation, the undersigned can only assume that defendant filed the second removal in order to delay the inevitable eviction from the dwelling where he may be residing unlawfully. Therefore, plaintiff will be compensated for the time spent in having to seek remand of this action. The declaration of attorney Kajal Islam indicates that he spent over 6.5 hours in reviewing the removal and preparing the remand and request for sanctions, at a rate of $150 per hour. This request is reasonable under the circumstances.

IV. Injunction

Garcia's bad faith effort to delay the state court unlawful detainer case by repeatedly removing it to various federal courts requires an injunction. Therefore, it is recommended that Garcia be prevented from further removing the state court action to any federal court.

CONCLUSION

IT IS HEREBY RECOMMENDED that:

1. The state action be summarily remanded to the Superior Court for the County of Sacramento;

2. The Clerk serve a certified copy of this order to the clerk of the Sacramento County Superior Court, and reference the state case number (09UD10568) in the proof of service;

3. Defendant Garcia be enjoined from removing state court case number 09UD10568, filed in Sacramento County Superior Court, to any federal court;

4. Defendant Garcia be ordered to pay sanctions to U.S. Bank in the amount of $975.00; and

5. The Clerk be directed to close this case.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: 12/07/2010


Summaries of

U.S. Bank National Association as Trustee v. Garcia

United States District Court, E.D. California
Dec 7, 2010
No. CIV S-10-1623 LKK GGH PS (E.D. Cal. Dec. 7, 2010)
Case details for

U.S. Bank National Association as Trustee v. Garcia

Case Details

Full title:U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE, Plaintiff, v. JAMIE GARCIA, et…

Court:United States District Court, E.D. California

Date published: Dec 7, 2010

Citations

No. CIV S-10-1623 LKK GGH PS (E.D. Cal. Dec. 7, 2010)