UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
November 10, 2010
HSBC BANK USA AS TRUSTEE FOR MANA 2007-OAR1, ITS SUCCESSORS AND/OR ASSIGNS, PLAINTIFF,
JOSE WILFREDO LOPEZ, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Dolly M. Gee United States District Judge
ORDER REMANDING CASE TO LOS ANGELES COUNTY SUPERIOR COURT
On February 11, 2010, Plaintiff HSBC Bank USA ("HSBC") filed a complaint in Los Angeles County Superior Court against Defendant Jose Wilfredo Lopez and Doe defendants "I" through "X" for unlawful detainer. HSBC seeks possession of real property and restitution for Plaintiff's use and occupancy of the property in the amount of $30 per day starting on January 28, 2010. (Compl. at 3.) HSBC demands less than $10,000 in damages. (Id. at 1.)
Defendant removed the case to this Court on October 12, 2010 on the basis of federal question jurisdiction. The complaint, however, raises no federal question. Although Defendant invokes federal statutes as an apparent defense or counterclaim, federal jurisdiction cannot rest upon an actual or anticipated defense or counterclaim. Vaden v. Discover Bank, __ U.S. __, 129 S.Ct. 1262, 1272, 173 L.Ed.2d 206 (2009).
Moreover, Defendant's Notice of Removal is untimely. A defendant must file notice of removal within 30 days after "receipt by the defendant . . . of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based." 28 U.S.C. § 1446(b). Plaintiff requested entry of default on March 12, 2010 (Notice of Removal, Ex. B), by which time Defendant evidently had received a copy of the complaint. Defendant did not file the Notice of Removal, however, until seven months later.
On October 25, 2010, the Court issued an Order to Show Cause ("OSC") why this action should not be remanded as improperly removed. Plaintiff has not filed a response and the November 8, 2010 deadline to do so has passed.
In light of the foregoing, this action is hereby REMANDED to Los Angeles County Superior Court.
IT IS SO ORDERED.
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