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 Because oral argument would not be of material assistance, 1

the Court orders this matter to be submitted on the briefing. 

L.R. 78-230(h).

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

JP MORGAN CHASE BANK,

NO. CIV. S 04-2492 MCE GGH

Plaintiff,

v. MEMORANDUM AND ORDER

CEDRIC V. PETERSON,

Defendant.

----oo0oo----

Federal Plaintiff JP Morgan Chase Bank (“Plaintiff”) has

asked this Court to remand the present action to state court. 

For the reasons set forth below, Plaintiff’s motion is GRANTED.1

BACKGROUND

The dispute in this case arises out of the ownership and

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retention of a single family residence located at 8675 Elm

Avenue, Orangevale, CA 95662 (hereinafter the “Property”). In

August 2001, Defendant Cedric V. Peterson (“Defendant”) executed

a promissory note and deed of trust to secure a loan on the

Property. (Compl. at ¶ 5.) Plaintiff was the named beneficiary

under the deed of trust. (Mot. to Remand at 2:9.) Because

Defendant defaulted on his obligations under the deed of trust, a

non-judicial trustee’s sale was held on April 10, 2003, and the

Property was sold. (Mot. to Remand at 2:10-12.) Plaintiff

obtained the trustee’s deed from the sale, which duly perfected

title of the property. (Compl. at ¶ 8.)

After the trustee’s sale, Defendant, proceeding pro se,

brought suit against Plaintiff seeking to, inter alia, (1) set

aside the trustee sale, (2) cancel the trustee’s deed, and (3)

quiet title. (Pl.’s Req. for Jud. Notice, Ex. A.) In response,

Plaintiff filed a motion for summary judgment. The Sacramento

Superior Court granted Plaintiff’s motion, entered judgment in

favor of Plaintiff, and dismissed Defendant’s complaint. (Pl.’s

Req for Jud. Notice, Ex. B.)

On October 6, 2004, Plaintiff filed an unlawful detainer

action against Defendant in the Sacramento Superior Court. (Pl.s

Req for Jud. Notice, Ex. C.) On November 22, 2004, Defendant

removed the case to federal court. (Not. of Removal at 1.) 

In response to Defendant’s removal, Plaintiff filed a motion

to remand on December 17, 2004, which was renewed on March 18,

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 Because Plaintiff’s original motion to remand (filed on 2

December 17, 2004) is effective, the Court finds that Plaintiff

has complied with 28 U.S.C. § 1447(c), which requires that a

motion to remand for procedural defects be filed within 30 days

after the filing of the notice of removal.

3

2005. Plaintiff contends remand is appropriate because (1) 2

Defendant’s removal was procedurally defective and (2) original

jurisdiction did not exist at the time of removal. Plaintiff has

also asked the Court to impose sanctions on Defendant pursuant to

28 U.S.C. § 1447(c). Defendant failed to oppose Plaintiff’s

motion to remand. 

STANDARD

After removal to federal court, a party can remand the case

to state court under 28 U.S.C. § 1447(c) for lack of federal

jurisdiction or for procedural defects. 28 U.S.C. § 1447(c)

(2000); Johnson v. Circuit City Stores, Inc., 71 F.Supp.2d 1026,

1028 (N.D. Cal. 1999); Burnette v. Godshall, 828 F.Supp. 1439,

1444 (N.D. Cal. 1993); Gaus v. Miles, Inc., 980 F.2d 564, 566

(9th Cir. 1992)(noting that the removal statute is strictly

construed against allowing removal).

If a court decides remand is appropriate, it “may require

payment of just costs and any actual expenses, including

attorneys fees, incurred as a result of the removal.” 28 U.S.C.

§ 1447(c) (2000).

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ANALYSIS

Under 28 U.S.C. § 1441(b), an action may not be removed

pursuant to diversity jurisdiction if any of the defendants, at

the time of removal, are a citizen of the state in which the

action is brought. 28 U.S.C. § 1441(b) (2000); Spencer v. U.S.

D. for N.D. of Cal., 393 F.3d 867, 870 (9th Cir. 2004). 

The Court finds that removal was improper under 28 U.S.C. §

1441(b) because at the time of removal Defendant was a citizen of

the state in which the action was brought. Defendant’s notice of

removal demonstrates that (1) Defendant was domiciled in

California at the time of removal and (2) Plaintiff’s unlawful

detainer action was brought in California. (Def.’s Not. of Rem.

at 1:6-7, 2:11-12.) 

In addition to the aforementioned procedural defect, the

Court did not have original jurisdiction at the time of removal

as required by 28 U.S.C. § 1441(a). Although Defendant alleged

that diversity jurisdiction existed at the time of removal, the

amount in controversy did not exceed $75,000 as required by 28

U.S.C. § 1332(a). 

Under California law, in an action for unlawful detainer the

sole issue before the Court is the right to possession. Hudec v.

Roberts, 210 Cal. App. 3d 1156, 1163 (1989); Vasey v. Cal. Dance

Comp., 70 Cal. App. 3d 742, 746-747 (1977). In such an action,

only damages that “result from the unlawful detention and accrue

during that time” are allowed. Hudec, 210 Cal. App. 3d at 1163

(quotations and citations omitted). In the present unlawful

detainer action, the damages do not exceed $10,000, let alone the

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requisite $75,000 for diversity jurisdiction. (Pl.’s Compl. for

Unlawful Detainer at 1.) Because the amount in controversy does

not meet the statutory minimum, original jurisdiction did not

exist at the time of removal and removal was, therefore,

improper. For these reasons, Plaintiff’s motion to remand is

granted.

With regard to sanctions against Defendant under 28 U.S.C. §

1447(c), it is clear that removal was improper as a matter of

law. However, the Court takes notice that Defendant is

proceeding pro se in this matter and may not be versed in federal

civil procedure. Based on these considerations, the Court finds

that Defendant must pay $150.00 to Plaintiff as reimbursement for

the filing fee on this motion. 

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CONCLUSION

For the aforementioned reasons, Plaintiff’s motion to remand

is GRANTED. Further, Defendant is ordered to pay Plaintiff

$150.00 as reimbursement for the filing fee on this motion.

IT IS SO ORDERED.

DATED: April 27, 2005

__________________________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

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