The opinion of the court was delivered by: Honorable Gary Allen Feess
Proceedings: (In Chambers)
Plaintiff Wescom Credit Union fka Wescom Central Credit Union ("Wescom") gained title to certain real property pursuant to a Trustee's Sale on May 12, 2010. (Not., Attachment [Complaint for Unlawful Detainer] ¶¶ 3--4.) On June 5, 2010, Wescom served written notice on Defendants Arthur and Katherine Dudley (collectively, "the Dudleys") and all others in possession, demanding that they vacate and deliver possession of the property within ninety days. (Id. ¶ 10.) After expiration of the ninety-day period, Wescom filed an unlawful detainer suit against the Dudleys and anyone else in possession of the property in Los Angeles County Superior Court. (Id. ¶¶ 10, 13--15.) The Dudleys never appeared in that action and defaulted. (Not. ¶ 4.) However, Ken Kreisel ("Kreisel"), the Dudleys' renter, intervened in the suit. (Not. ¶¶ 2, 8.) In the meantime, Kreisel filed a separate suit against Wescom in this Court alleging that Wescom violated the federal Protecting Tenants at Foreclosure Act ("PTFA") by serving the ninety-day notice to quit without having a buyer ready to occupy the premises as their primary residence. (Ken Kreisel v. Wescon Credit Union et al, No. CV 10-8192 GAF (SSx), Docket No. 1, Compl. ¶¶ 1, 5.) After filing that suit in this Court, Kreisel filed a notice of removal of this unlawful detainer action, alleging that the Court has supplemental jurisdiction over it under 28 U.S.C. § 1367(a) by virtue of the related case asserting the PTFA claim.
On November 16, 2010, Wescom filed an ex parte application to remand this case to state court. (Docket No. 8.) On November 18, Kreisel filed an opposition arguing that this case LINK: 1, 8 presents a federal question because the PTFA has preempted state unlawful detainer laws and converted them into federal actions. (Docket No. 9.)
The Court concludes that it lacks subject matter jurisdiction over this case and accordingly REMANDS it to the Los Angeles County Superior Court.
In general, the Court will not grant ex parte relief unless "the moving party's cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures" and "the moving party is without fault in creating the crisis that requires ex parte relief, or . . . the crisis occurred as a result of excusable neglect." Mission Power Engineering Co. v. Cont'l Gas Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995). Here, however, the Court need not determine whether Wescom has met the standard for ex parte relief because the Court can, and in the ordinary course would, remand a case to state court where it lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."); United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 966 (9th Cir. 2004) ("Here the district court had a duty to establish subject matter jurisdiction over the removed action sua sponte, whether the parties raised the issue or not.").
STANDARD FOR REMOVAL UNDER 28U.S.C.§1441
Courts "strictly construe the removal statute against removal jurisdiction," and "the defendant always has the burden of establishing that removal is proper." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Furthermore, "jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Id. Removal is proper only if the Court could have exercised jurisdiction over the action had it originally been filed in federal court. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).
Kreisel contends that this Court has subject matter jurisdiction over the removed case for two reasons: (1) the case presents a federal question under the PTFA, and (2) the Court has supplemental jurisdiction over the case by virtue of the related action presenting a federal Wescom Credit Union v. Arthur S. Dudley et al ...