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Victor M. Lopez-Felix v. Emc Mortgage Corp

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 29, 2011

VICTOR M. LOPEZ-FELIX,
PLAINTIFF,
v.
EMC MORTGAGE CORP.; NDEX WEST, LLC; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; ET AL., DEFENDANTS.

The opinion of the court was delivered by: Honorable Janis L. SammartinoUnited States District Judge

ORDER: SUA SPONTE REMANDING CASE

Plaintiff filed this action in the Superior Court of California for the County of San Diego on February 17, 2011. (See Notice of Removal ¶ 1, ECF No. 1; Notice of Removal Ex. 1 (Compl.).) Subsequently, filed a first amended complaint alleging seven claims: (1) quiet title, (2) injunctive relief, (3) promissory estoppel, (4) wrongful foreclosure, (5) fraud, (6) intentional misrepresentation, and (7) violation of California Civil Code section 1632(b)(4). (Notice of Removal ¶ 3; Notice of Removal Ex. 2 (FAC).) On July 26, 2011, Plaintiff removed the case to this Court. (Notice of Removal.) Plaintiff's contends that removal is proper because "[t]he complaint includes claims that are based, in part, upon federal law, including the implications as to violations of" the Truth in Lending Act and Regulation Z. (Id. ¶ 9.) The Court finds that Plaintiff's removal of this case was improper and sua sponte remands the case to the Superior Court of California for the County of San Diego.

In cases "brought in a State court of which the district courts of the United States have original jurisdiction," a defendant may remove the case to federal district court. 28 U.S.C. §1441(a). This statute is "quite clear that only a 'defendant' may remove [an] action to federal court." Bush v. Cheaptickets, Inc., 425 F.3d 683, 686 (9th Cir. 2005); accord Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 106--08 (1941); Or. Egg Producers v. Andrew, 458 F.2d 382, 383 (9th Cir. 1972) ("A plaintiff who commences his action in a state court cannot effectuate removal to a federal court even if he could have originated the action in a federal court . . . .").

Here, even assuming that this Court has federal question jurisdiction over Plaintiff's amended complaint-which the Court does not concede, see Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 701 (2006) (emphasizing that only a "slim category" of state law claims "aris[e] under" federal law for purposes of 28 U.S.C. § 1331)-§ 1441 does not permit its removal. Plaintiff made the choice to commence this action in state court, and he is bound by that choice. Accordingly, this matter is REMANDED to the Superior Court of California for the County of San Diego. The Clerk shall close the file.

IT IS SO ORDERED.

20110729

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