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Mlsre, Inc. v. Shirley A. Summy; et al.

May 17, 2011

MLSRE, INC.
v.
SHIRLEY A. SUMMY; ET AL.



CIVIL MINUTES - GENERAL JS-6

Title

Present: The Honorable CHRISTINA A. SNYDER CATHERINE JEANG Not Present N/A Deputy Clerk Court Reporter / Recorder Tape No.

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

Proceedings: (In Chambers:)

PLAINTIFF'S EX PARTE APPLICATION FOR ORDER TO REMAND (filed 05/09/11)

INTRODUCTION

On March 10, 2011, plaintiff MLSRE, Inc. filed suit against defendant Shirley A. Summy in the Los Angeles County Superior Court alleging a state law cause of action for unlawful detainer (the "state court action"). On March 16, 2011, defendant filed a demurrer in the state court action. The state court overruled defendant's demurrer on April 6, 2011, and ordered her to answer the unlawful detainer complaint in five days.

Pl.'s RJN, Exh. E.*fn1 On April 7, 2011, defendant filed a Notice of Removal of the state court action in this Court. Defendant apparently never notified plaintiff or the state court that she had filed the Notice of Removal.*fn2 See Declaration of Michelle Scales ¶ 4; Declaration of Dennis Block ¶ 4. Accordingly, when defendant failed to file an answer to the complaint, on April 14, 2011, the state court entered a default judgment against her and issued a writ of possession. See Pl.'s RJN, Exh. F. On April 26, 2011, the writ was served by the Los Angeles County Sheriff. Block Decl. ¶ 6. Finally, on May 5, 2011, defendant notified plaintiff of the filing of the Notice of Removal in this Court. Id. According to defendant, the state court stayed proceedings in the state court action on May 6, 2011. Opp'n at 2.

On May 9, 2011, plaintiff filed the instant ex parte application to remand the action to state court.*fn3 Defendant filed an opposition on May 11, 2011. After carefully considering the arguments set forth by both parties, the Court finds and concludes as follows.

LEGAL STANDARD

A motion for remand is the proper procedure for challenging removal. Remand may be ordered either for lack of subject matter jurisdiction or for any defect in removal procedure. See 28 U.S.C. § 1447(c). The Court strictly construes the removal statutes against removal jurisdiction, and jurisdiction must be rejected if there is any doubt as to the right of removal. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The party seeking removal bears the burden of establishing federal jurisdiction. See Prize Frize, Inc. v. Matrix, Inc., 167 F.3d 1261, 1265 (9th Cir. 1999). The defendant also has the burden of showing that it has complied with the procedural requirements for removal. Judge William W. Schwarzer, et al., California Practice Guide: Federal Civil Procedure Before Trial § 2:609 (The Rutter Group 2007).

Under 28 U.S.C. § 1441, the removal statute, an action is removable to federal court only if it might have been brought there originally. See 28 U.S.C. § 1441(a). 28 U.S.C. § 1331 gives federal courts "original jurisdiction" over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A case "arises under" federal law if a plaintiff's "well-pleaded complaint establishes either that federal law creates the cause of action" or that the "plaintiff's right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties." Franchise Tax Bd. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 13, 27--28 (1983). Where the cause of action is based on state law, the district court has subject matter jurisdiction over the case if: (1) the federal issues are essential to the claims; (2) there is a substantial federal interest in resolving such issues; and (3) a federal forum may entertain the state-law claims without disturbing the balance of federal and state judicial responsibilities. See Grable & Sons Metal Prods. v. Darue Eng'g & Mfg., 545 U.S. 308, 313--15 (2005).

DISCUSSION

As a preliminary matter, the Court notes that there is no basis for removal founded on diversity jurisdiction.*fn4 Removal on the basis of diversity jurisdiction requires that the parties be in complete diversity and that the amount in controversy exceed $75,000. 28 U.S.C. ยง 1332(a)(1); see Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003). In the instant case, plaintiff alleges that the claim is under $10,000, and only seeks "damages in the amount of $56.67 per day since 3/8/11." See ...


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