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Cesar Morales et al v. Fremont Investment & Loan et al

January 18, 2011

CESAR MORALES ET AL
v.
FREMONT INVESTMENT & LOAN ET AL



JS-6

CIVIL MINUTES - GENERAL

Present: The Honorable JACQUELINE H. NGUYEN

Alicia Mamer Not Reported N/A

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants: Not present Not present

Proceedings: ORDER REMANDING CASE TO CALIFORNIA SUPERIOR COURT, COUNTY OF LOS ANGELES (In Chambers)

On December 16, 2010, Defendants removed this action to this Court. Defendants assert that federal jurisdiction exists on the basis of a federal question. (Notice of Removal ¶ 4.)

There is a strong presumption against removal, and the party seeking removal bears the burden of establishing that removal is proper. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Under 28 U.S.C. § 1331, this Court has original jurisdiction over civil actions "arising under" federal law. An action arises under federal law if federal law creates the cause of action for which relief is sought. Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002). "A case may also arise under federal law where 'it appears that some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims.'" Id. (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 13 (1983)). However, the mere naming of a federal law within a state cause of action is not sufficient to confer federal-question jurisdiction. See Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 813 (1986). For example, where a violation of a federal statute is one of several independent allegations supporting a state law cause of action, the state law cause of action does not "necessarily turn" on the construction of the federal statute. Rains v. Criterion Sys., Inc., 80 F.3d 339, 345--46 (9th Cir. 1996) ("When a claim can be supported by alternative and independent theories-one of which is a state law theory and one of which is a federal law theory-federal question jurisdiction does not attach because federal law is not a necessary element of the claim.").

Here, Defendants removed this action based on the First Amended Complaint ("FAC") Plaintiffs filed in the state-court action. However, the FAC fails to assert a single federal cause of action. The cover page of the FAC lists thirteen claims, including "Violation of Unfair Practices 15 USCS § 1692f," "Violation of Debts 15 USCS § 1692g," "Violation of RESPA 12 U.S.C. § 2607," and "Violation of Truth in Lending Act (15 U.S.C. § 1601)."*fn1 In the Jurisdiction and Venue section of the FAC, Plaintiffs allege "that they have claims against Defendants which include Negligence, Violation of duty of good faith,

JS-6

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:10-cv-09657-JHN-SSx

Date January ...


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