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Wells Fargo Bank, N.A. v. Mendiola

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
Nov 23, 2011
No. C11-05584 HRL (N.D. Cal. Nov. 23, 2011)

Opinion

No. C11-05584 HRL

11-23-2011

WELLS FARGO BANK, N.A., Plaintiff, v. MARY GRACE S. MENDIOLA; and DOES 1 to 10, inclusive, Defendants.


NOT FOR CITATION


ORDER THAT CASE BE REASSIGNED TO A DISTRICT JUDGE


REPORT AND RECOMMENDATION

Pro se defendant Mary Grace Mendiola removed this unlawful detainer action from Santa Clara County Superior Court. For the reasons stated below, the undersigned recommends that this action be summarily remanded.

Plaintiff Wells Fargo Bank, N.A. (Wells Fargo) filed this unlawful detainer action in July 2011. According to the complaint, plaintiff acquired the subject property through a foreclosure trustee's sale in June 2011. (Complaint, ¶ 5). The complaint further alleges that on June 9, 2011, plaintiff served defendant with a notice to vacate, but defendant refused to deliver possession of the property. (Id. ¶¶ 7-8).

Removal to federal court is proper where the federal court would have original subject matter jurisdiction over the complaint. 28 U.S.C. § 1441. If, after a court's prompt review of a notice of removal "it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shall make an order for summary remand." 28 U.S.C. § 1446(c)(4) (emphasis added). These removal statutes are strictly construed against removal and place the burden on the defendant to demonstrate that removal was proper. 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)).

Defendant contends that removal is proper because "[t]he complaint presents federal questions." (Notice of Removal at 2). Federal courts have original jurisdiction over civil actions "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A claim "arises under" federal law if, based on the "well-pleaded complaint rule," the plaintiff alleges a federal claim for relief. Vaden v. Discovery Bank, 129 S. Ct. 1262, 1272 (2009). Defenses and counterclaims asserting a federal question do not satisfy this requirement. Id.

Here, the record indicates that plaintiff's complaint states only a claim for unlawful detainer. It does not allege any federal claims whatsoever. (Notice of Removal Ex. A). Defendant argues that plaintiff's unlawful detainer complaint violates federal law. (Notice of Removal at 2). However, defendant's allegations in her removal notice or in a response to plaintiff's complaint cannot provide this court with federal question jurisdiction. Accordingly, defendant has failed to show that removal is proper on account of any federal substantive law.

Nor does this court have diversity jurisdiction over the matter. Defendant does not establish diversity of citizenship in her removal notice, and a review of the complaint shows that it specifies that the amount of claimed damages does not exceed $10,000.00. (Complaint at 1). In any event, as a California defendant, Mendiola does not have the right to remove this action to federal court under diversity jurisdiction. 28 U.S.C. § 1441(b) (stating that an action is removable for diversity "only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought").

Because the parties have yet to consent to the undersigned's jurisdiction, this court ORDERS the Clerk of the Court to reassign this case to a District Judge. The undersigned further RECOMMENDS that the newly assigned judge summarily remand the case to Santa Clara County Superior Court. Pursuant to Federal Rule of Civil Procedure 72(b), any party may serve and file objections to this Report and Recommendation within fourteen days after being served.

SO ORDERED.

HOWARD R. LLOYD

UNITED STATES MAGISTRATE JUDGE
5:11-cv-05584-HRL Notice sent by U.S. Mail to:

Kevin A. Harris

Harris, Rosales & Harris

351 St. Mary Street

Pleasanton, CA 94566

Mary Grace Mendiola

3075 Remington Way

San Jose, CA 95148


Summaries of

Wells Fargo Bank, N.A. v. Mendiola

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
Nov 23, 2011
No. C11-05584 HRL (N.D. Cal. Nov. 23, 2011)
Case details for

Wells Fargo Bank, N.A. v. Mendiola

Case Details

Full title:WELLS FARGO BANK, N.A., Plaintiff, v. MARY GRACE S. MENDIOLA; and DOES 1…

Court:UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

Date published: Nov 23, 2011

Citations

No. C11-05584 HRL (N.D. Cal. Nov. 23, 2011)