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8 UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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12 SUSAN BARRIE, et al., Case No. 20-CV-07347-LHK

13 Plaintiffs,

ORDER GRANTING MOTION TO

REMAND AND DENYING AS MOOT

14 v.

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

15 VIRGINIA FIORENTINO, Re: Dkt. Nos. 2, 11 16 Defendant. 17 18 Plaintiffs Susan Barrie, Christopher Grossman, and Open Door, LLC (collectively, 19 “Plaintiffs”) sue Defendant Virginia Fiorentino (“Defendant”) for unlawful detainer. Before the 20 Court is Plaintiffs’ motion to remand the instant case. ECF No. 11. Having considered the parties’ 21 submissions, the relevant law, and the record in this case, the Court GRANTS Plaintiffs’ motion to 22 remand. 23 I. BACKGROUND 24 On May 18, 2020, Plaintiffs purchased the subject residential real property located at 105 25 Willow Hill Ct., Los Gatos, California 95032 (“Property”) at a trustee’s sale following foreclosure 26 proceedings. ECF No. 1-1 (“Compl.”) ¶¶ 1–2. On August 11, 2020, Defendant was served with a 27 1 1 three-day quit notice (the “Notice”). Id. ¶ 2. Despite the Notice’s expiration, Defendant remains in 2 possession of the Property. ¶ 3. As a result, Plaintiffs filed an unlawful detainer action in the 3 California Superior Court for the County of Santa Clara on September 2, 2020. See Compl. 4 On October 19, 2020, Defendant, who is pro se, removed the unlawful detainer action to 5 federal court and moved to proceed in forma pauperis. ECF Nos. 1, 2. In her Notice of Removal, 6 Defendant states that she has filed counterclaims against Plaintiffs for, inter alia, “various 7 violations under the Fair Debt Collection Practices Act [FDCPA],” 15 U.S.C. § 1692 et seq. ECF 8 No. 1 ¶ 2. Defendant asserts that this Court has subject matter jurisdiction through federal question 9 jurisdiction pursuant to 28 U.S.C. § 1331 and diversity jurisdiction pursuant to 28 U.S.C. § 1332. 10 Id. ¶¶ 4, 13. 11 On November 12, 2020, Plaintiff filed the instant Motion to Remand. ECF No. 11 12 (“Mot.”). Defendant has not opposed the motion. 13 II. LEGAL STANDARD 14 A suit may be removed from state court to federal court only if the federal court would 15 have had subject matter jurisdiction over the case. 28 U.S.C. § 1441(a); see Caterpillar Inc. v. 16 Williams, 482 U.S. 386, 392 (1987) (“Only state-court actions that originally could have been filed 17 in federal court may be removed to federal court by the defendant.”). “In civil cases, subject 18 matter jurisdiction is generally conferred upon federal district courts either through diversity 19 jurisdiction, 28 U.S.C. § 1332, or federal question jurisdiction, 28 U.S.C. § 1331.” Peralta v. 20 Hispanic Bus., Inc., 419 F.3d 1064, 1068 (9th Cir. 2005). If it appears at any time before final 21 judgment that the federal court lacks subject matter jurisdiction, the federal court must remand the 22 action to state court. 28 U.S.C. § 1447(c). 23 The party seeking removal bears the burden of establishing federal jurisdiction. Provincial 24 Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). “The removal 25 statute is strictly construed, and any doubt about the right of removal requires resolution in favor 26 27 2 1 of remand.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing 2 Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). 3 III. DISCUSSION 4 Plaintiffs argue that this Court should remand the instant case to the California Superior 5 Court for the County of Santa Clara because the Court lacks subject matter jurisdiction over the 6 instant case. The Court agrees. 7 To start, the Court does not have federal question jurisdiction over this matter. Federal 8 courts have original jurisdiction over civil actions “arising under the Constitution, laws, or treaties 9 of the United States.” 28 U.S.C. § 1331. Federal question jurisdiction “is determined (and must 10 exist) as of the time the complaint is filed and removal is effected.” Strotek Corp. v. Air Transp. 11 Ass’n of Am., 300 F.3d 1129, 1131 (9th Cir. 2002). Removal pursuant to section 1331 is governed 12 by the “well-pleaded complaint rule,” which provides that federal question jurisdiction exists only 13 when “a federal question is presented on the face of plaintiff’s properly pleaded complaint.” 14 Caterpillar, 482 U.S. at 392. “Federal jurisdiction cannot be predicated on an actual or anticipated 15 defense.” Vaden v. Discover Bank, 556 U.S. 49, 60 (2009). “Nor can federal jurisdiction rest upon 16 an actual or anticipated counterclaim.” Id. 17 In the instant case, Plaintiffs’ complaint for unlawful detainer does not assert any claim 18 that arises under federal law. See Compl. That Defendant advances a counterclaim arising under 19 the federal FDCPA is of no moment because the Court must look to the face of Plaintiffs’ properly 20 pleaded complaint, not to Defendant’s counterclaim. See Vaden, 556 U.S. at 60. As a result, there 21 is no federal question jurisdiction over the instant case. See, e.g., Bank of New York Mellon v. Vo, 22 Case No. 14-CV-05110-LHK, 2015 WL 662221, at *2 (N.D. Cal. Feb. 12, 2015) (granting motion 23 to remand plaintiff’s unlawful detainer action even though pro se defendants had invoked the 24 federal FDCPA in response); LNV Corp. v. Randle, Case No. EDCV 14-0082 JGB, 2014 WL 25 176742, at *1–2 (C.D. Cal. Jan. 15, 2014) (same); Bank of N.Y. Mellon v. Hernandez, Case No. C- 26 12-00767 DMR, 2012 WL 2375096, at *1 (N.D. Cal. June 22, 2012) (same); see also U.S. Bank 27 3 1 Nat’l Ass’n v. Terrenal, Case No. 12-CV-5540 YGR, 2013 WL 124355, at *2 (N.D. Cal. Jan. 8, 2 2013) (finding “no basis for asserting federal claim jurisdiction” where “[t]he complaint asserts 3 only one state law claim for unlawful detainer”). 4 Nor may Defendant remove Plaintiffs’ unlawful detainer action on the basis of diversity 5 jurisdiction. Federal courts have diversity jurisdiction over civil actions “where the matter in 6 controversy exceeds the sum or value of $75,000 . . . and is between . . . citizens of different 7 States.” 28 U.S.C. § 1332. The statute “applies only to cases in which the citizenship of each 8 plaintiff is diverse from the citizenship of each defendant.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 9 68 (1996). 10 In the instant case, Defendant has made an insufficient showing that there is diversity 11 jurisdiction. All parties are citizens of California, so there is no diversity of citizenship. See ECF 12 No. 1-3 (stating that Plaintiffs and Defendant are citizens of California), ECF No. 11 ¶ 7 (stating 13 that Plaintiffs are citizens of California). Even assuming that there is diversity of citizenship, the 14 $75,000 amount in controversy requirement is not met. Plaintiffs are seeking damages of “$117.00 15 per day from August 17, 2020 through the date of restitution of possession or the date of judgment 16 herein, whichever comes first.” Compl. ¶ 8. However, the case would have to be litigated for 17 nearly two years in order to meet the amount in controversy requirement. Accordingly, Defendant 18 has not shown that the amount in controversy requirement has been met. See MOAB Inv. Grp. v. 19 Moreno, Case No. C-14-0092 EMC, 2014 WL 523092, at *1 (N.D. Cal. Feb. 6, 2014) (concluding 20 the amount in controversy was not met in an unlawful detainer case because “[t]his case would 21 have to be litigated for almost two years for it to exceed the $75,000 threshold”). As a result, there 22 is no diversity jurisdiction over the instant case. Because this Court has no basis for exercising 23 subject matter jurisdiction, the Court must grant Plaintiff’s motion to remand. 24 Furthermore, “courts have held that failure ‘to oppose [a] motion for remand’ means that 25 remand is warranted.” Lam v. Kingue, Case No. 19-CV-02993-LHK, 2019 WL 4059853, at *1 26 (N.D. Cal. Aug. 28, 2019) (quoting Aurora Loan Servs., LLC v. Gutierrez, Case No. C 11-05288 27 4 1 CW, 2012 WL 174851, at *1 (N.D. Cal. Jan. 20, 2012)); see also Bank of New York Mellon v. 2 || Crandall, Case No. 11-CV-2574-JAH, 2012 WL 117151, at *1 (S.D. Cal. Jan. 13, 2012) (granting 3 motion to remand because “Defendant failed to file an opposition”); Zatta v. Societe Air France, 4 || Case No. SA CV 11-0647 DOC, 2011 WL 2472280, at *1 (C.D. Cal. June 21, 2011) (same); 5 || Sundby v. Bank of New York Mellon, Case No. 11-CV-627 DMS, 2011 WL 1670914, at *1 (S.D. 6 || Cal. May 3, 2011) (same). Here, Defendant failed to oppose the motion to remand. Thus, the 7 || Court GRANTS the Motion to remand. 8 || IV. CONCLUSION 9 For the foregoing reasons, the Court GRANTS Plaintiffs’ motion to remand the instant 10 case to the California Superior Court for the County of Santa Clara. The Court DENIES AS 11 MOOT Defendant’s motion to proceed in forma pauperis. 3 12 || ITISSO ORDERED.

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14 Dated: December 7, 2020 O 15 K of L

LUCY #. KOH

A 16 United States District Judge

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19 20 21 22 23 24 25 26 27 28 Case No. 20-CV-07347-LHK

ORDER GRANTING MOTION TO REMAND AND DENYING AS MOOT MOTION FOR LEAVE TO