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March 19, 2003


The opinion of the court was delivered by: Vaughn R. Walker, United States District Judge.


On February 7, 2003, plaintiffs Madeleine and Martin Cooper (the Coopers), acting pro se, filed a notice of removal of an action commenced in state court. Doc #1. Although the Coopers identify themselves as plaintiffs in the pleadings filed with this court, they are in fact the defendants in the unlawful detainer proceeding in Contra Costa County superior court that they seek to remove. See Unlawful Detainer Compl (Doc # ll), Exh B.

In the complaint in that action (unlawful detainer complaint), Washington Mutual Bank (WMB) alleges that Madeleine Cooper (Cooper) and unnamed Doe defendants own premises located at 629 Oakshire Place, Alamo, California. See id at 2. The unlawful detainer complaint alleges that Cooper received personal service of a lawful notice to quit and deliver possession of the premises to WMB within three days of service of that notice. See id. The unlawful detainer complaint asserts that Cooper failed to do so in the allotted time. See id. WMB seeks available relief under state law. See id.

In their notice of removal, the Coopers do not identify any claims in the unlawful detainer complaint that might form the basis for the court's removal jurisdiction; nor have they provided the court with a copy of the unlawful detainer complaint. Rather, the Coopers have filed an additional complaint (Doc #3) and motion for a temporary restraining order (TRO) (Doc #5) that seek various forms of relief against WMB and the state court judge presiding over the unlawful detainer proceedings. The Coopers have moved for a TRO against Judge Stephen Houghton barring him from conducting further proceedings in this matter in state court. See Doc #5. And the Coopers' have filed a "verified complaint" with this court asserting claims against WMB under 12 U.S.C. § 1828 and additional constitutional claims against WMB pursuant to 42 U.S.C. § 1983. See Coopers' Compl (Doc #3) at 1-2. The only potential sources of federal jurisdiction over the unlawful detainer action the Coopers identify are the claims asserted in the complaint filed by the Coopers, not that filed by WMB, the plaintiff in the unlawful detainer action.

Section 1446 of Title 28 of the United States Code requires defendants seeking removal to file in the district court to which they are seeking to remove an action a notice of removal and a copy of all process, pleadings and orders served upon them in the action sought to be removed. 28 U.S.C. § 1446 (a). Although this defect is merely procedural, hence correctable, the filing of these documents is required because it is the state law complaint to which the court looks to determine whether it has jurisdiction over the removed action. See, e g, Riehl v. National Mutual Insurance Co, 374 F.2d 739 (7th Cir 1967)

"When a case is removed to federal court on the basis of federal question jurisdiction, the federal question must be clear from the face of the complaint in the state court action." Tam, 1998 WL 409879 at *1 (citing Gully v. First National Bank of Meridian, 299 U.S. 109, 113 (1936); emphasis supplied). The existence of a defense or counterclaim that raises a federal question cannot ground federal question jurisdiction on removal; the court's jurisdiction is determined by looking to the plaintiff's well-pleaded complaint. See Franchise Tax Board of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 10 (1983); Rath Packing Co v. Becker, 530 F.2d 1295, 1303-04 (9th Cir 1975)

"If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447 (c). Whether or not a party questions the court's subject matter jurisdiction, the court is required to raise and address the issue sua sponte. See FW/PBS, Inc v. City of Dallas, 493 U.S. 215, 229 (1990); Washington Local Lodge No 104 v International Brotherhood of Boilermakers, 621 F.2d 1032, 1033 (9th Cir 1980)

The state action the Coopers have sought to remove to this court is an unlawful detainer action involving a bank foreclosure on certain property owned by the Coopers. The complaint states no cause of action under federal law, nor has plaintiff pointed to any claim in the unlawful detainer complaint that raises a question "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. An unlawful detainer action does not raise a question arising under federal law and so, once removed, must be remanded for lack of jurisdiction. See Bassin, 2000 US Dist Lexis 11255 at *2.

If. the court's lack of subject matter jurisdiction over an action is cleat and unarguable, as here, the court may remand without further briefing or argument from the parties. See Air-Shields, Inc v. Fullam, 891 F.2d 63, 65 (3rd Cir 1989); Maniar v FDIC, 979 F.2d 782 (9th Cir 1992); Schwarzer, Tahisma & Wagstaffe, California Practice Guide: Federal Civil Procedure before Trial § 2:1092 (The Rutter Group 2002). Although WMB has filed a motion to remand (Doc #9), the court is satisfied that the claims raised by the unlawful detainer complaint demonstrate conclusively that the court lacks jurisdiction over WMB's state law unlawful detainer action.

Because the court lacks subject matter jurisdiction, the court orders this action REMANDED to Contra Costa County superior court for all further proceedings. The court directs the clerk to TERMINATE all pending motions (Docs ##5, 6, 9, 12) and close the file.



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