The opinion of the court was delivered by: Present: The Honorable Gary Allen Feess
Renee Fisher None N/A Deputy Clerk Court Reporter / Recorder Tape No.
Proceedings: (In Chambers)
On March 19, 2009, Plaintiff JP Morgan Chase Bank N.A. filed this unlawful detainer action against Defendant Wes Johnson in San Luis Obispo Superior Court.*fn1 On March 27, 2009, Johnson removed the case to this Court pursuant to 28 U.S.C. § 1441.
Johnson contends the Court has federal question jurisdiction, under 28 U.S.C. § 1331, because the action "arises from violations of the Fair Credit Reporting Act ("FCRA"), . . . Fair Debt Collection Practices Act ("FDCPA"), . . . and the Truth in Lending Act ("TILA")." (Not. of Removal ¶ 3.) Johnson's statement of jurisdiction appears to rely on his concurrently filed "counterclaim against Plaintiff and other third parties for the above stated federal questions and related state court causes of action." (Id. ¶ 5.)
On April 27, 2009, Plaintiff filed a motion to remand the case on the basis that the Court lacks subject matter jurisdiction. (Docket No. 12.) A few days earlier, the third party defendants named in Johnson's counterclaim filed a motion to dismiss the counterclaim. (Docket No. 11.) Both matters are scheduled for hearing on Monday, June 1, 2009. Johnson did not file a brief in opposition to either motion. The Court concludes the matter can be adjudicated without argument and hereby VACATES the hearing scheduled for June 1, 2009.
Johnson, who is represented by counsel and therefore should know better, is completely wrong on jurisdictional jurisprudence. "Federal question jurisdiction is determined by the federal district court solely from the face of plaintiff's complaint." Rath Packing Co. v. Becker, 530 F.2d 1295, 1303 (9th Cir. 1975) (citing Gully v. First National Bank, 299 U.S. 109 (1936)); also Caterpillar Inc. v. Williams, 482 U.S. 386, 392-93 (1987). "Removability cannot be created by defendant pleading a counter-claim presenting a federal question under 28 U.S.C. § 1331." Rath Packing Co., 530 F.2d at 1303. Plaintiff filed a simple unlawful detainer action in county court. This Court does not have subject matter jurisdiction over such a suit.
Accordingly, the Court GRANTS Plaintiff's motion to remand. The motion to dismiss the third party complaint is therefore moot.