(PS)(UD) Newrez LLC dba Shellpoint Mortgage Servicing v. Ussery

• Court: District Court, E.D. California
• Decided: January 10, 2025
• Docket: 2:24-cv-03698
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NEWREZ LLC DBA SHELLPOINT No. 2:24-cv-03698-TLN-CSK MORTGAGE SERVICING, 12 Plaintiff, 13 SUA SPONTE REMAND ORDER v. 14 KIMBERLY USSERY, 15 Defendant. 16

17 18 This matter is before the Court pursuant to Defendant Kimberly Ussery’s (“Defendant”) 19 Notice of Removal and Motion to Proceed in Forma Pauperis. (ECF Nos. 1, 2.) For the reasons 20 set forth below, Defendant’s Motion to Proceed in Forma Pauperis (ECF No. 2) is DENIED as 21 moot, and the Court hereby REMANDS the action to the Superior Court of California, County of 22 San Joaquin, due to lack of subject matter jurisdiction. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 On December 26, 2024, Defendant filed a pro se Notice of Removal removing to the 3 instant Court what appears to be an unlawful detainer action from the San Joaquin County 4 Superior Court. (ECF No. 1.) Defendant did not attach a state court complaint (“Complaint’) to 5 the Notice of Removal or indicate the basis for this Court’s jurisdiction. (ECF No. 1-1.) 6 II. STANDARD OF LAW 7 28 U.S.C. § 1441 permits the removal to federal court of any civil action over which “the 8 district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). “Removal is 9 proper only if the court could have exercised jurisdiction over the action had it originally been 10 filed in federal court.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). 11 Courts “strictly construe the removal statute against removal jurisdiction,” and “the 12 defendant always has the burden of establishing that removal is proper.” Gaus v. Miles, Inc., 980 13 F.2d 564, 566 (9th Cir. 1992) (per curiam). Furthermore, “[i]f the district court at any time 14 determines that it lacks subject matter jurisdiction over the removed action, it must remedy the 15 improvident grant of removal by remanding the action to state court.” California ex rel. Lockyer 16 v. Dynegy, Inc., 375 F.3d 831, 838, as amended, 387 F.3d 966 (9th Cir. 2004), cert. denied 544 17 U.S. 974 (2005). 18 Federal question jurisdiction is set forth in 28 U.S.C. § 1331. See 28 U.S.C. § 1331. The 19 “presence or absence of federal question jurisdiction is governed by the ‘well-pleaded complaint 20 rule,’ which provides that federal jurisdiction exists only when a federal question is presented on 21 the face of the plaintiff’s properly pleaded complaint.” Caterpillar, 482 U.S. at 386. Federal 22 question jurisdiction therefore cannot be based on a defense, counterclaim, cross-claim, or third- 23 party claim raising a federal question. See Vaden v. Discover Bank, 556 U.S. 49 (2009); Hunter 24 v. Philip Morris USA, 582 F.3d 1039, 1042–43 (9th Cir. 2009). 25 III. ANALYSIS 26 Although Defendant did not indicate the basis for this Court’s jurisdiction, the Court 27 presumes Defendant believes the basis to be federal question jurisdiction as the U.S. Government 28 is not a party to this action and Defendant indicates she and Plaintiff are citizens of California 1 | such that there is no diversity between the parties. (ECF No. 1-1.) However, to the extent 2 | Defendant believes the basis for this Court’s jurisdiction to be federal question, the Court cannot 3 || determine whether the action arises under federal law without the underlying Complaint. See 4 | Caterpillar, 482 U.S. at 386 (“[FJederal jurisdiction exists only when a federal question 1s 5 || presented on the face of the plaintiff's properly pleaded complaint.”). Defendant refers to the 6 | state court action as being an unlawful detainer action. (See generally ECF No. 1.) Generally, 7 | such actions are grounded solely in state law. To the extent Defendant is arguing some aspect of 8 | that action is unconstitutional, such an argument likely relates to an affirmative defense or 9 | potential counterclaim, which cannot be considered in evaluating whether a federal question 10 | appears on the face of Plaintiff's Complaint. See Vaden, 556 U.S. at 60-62. In any event, 11 | Defendant bears the burden of showing removal is proper. See Gaus, 980 F.2d at 566. By failing 12 | to attach the Complaint, Defendant has not met her burden. 13 As there are no apparent grounds for federal jurisdiction, it is appropriate to remand this 14 | case, sua sponte, for lack of federal subject matter jurisdiction. See United Investors Life Ins. Co. 15 | v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (‘the district court ha[s] a duty to 16 | establish subject matter jurisdiction over the removed action sua sponte, whether the parties 17 || raised the issue or not.”). 18 IV. CONCLUSION 19 For the reasons stated above, Defendant’s Motion to Proceed in Forma Pauperis (ECF No. 20 | 2) is DENIED as moot, and the Court hereby REMANDS this action to the San Joaquin County 21 | Superior Court. 22 IT IS SO ORDERED. 23 | Date: January 8, 2025 24

26 TROY L. NUNLEY 27 CHIEF UNITED STATES DISTRICT JUDGE 28