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Reo Properties Two Lp v. Alberto Delariva et al

July 29, 2011

REO PROPERTIES TWO LP
v.
ALBERTO DELARIVA ET AL



The opinion of the court was delivered by: The Honorable Gary Allen Feess

CIVIL MINUTES - GENERAL

Present: The Honorable GARY ALLEN FEESS

Renee Fisher None N/A Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

None None

Proceedings: (In Chambers)

ORDER REMANDING CASE

On May 23, 2011, Plaintiff REO Properties Two LP ("Plaintiff") filed this unlawful detainer action against Defendants Alberto De La Riva and Irasema De La Riva (collectively, "Defendants") in Riverside County Superior Court. (Docket No. 1, Not.of Removal ¶¶ 1, 4.) On July 7, 2011, Defendants removed the action to this Court, purportedly under 28 U.S.C. § 1443(1). (Id. ¶¶ 6--7.) For the reasons set forth below, the Court concludes that it lacks subject matter jurisdiction in this case and accordingly REMANDS it to Riverside County Superior

Under Federal Rule of Civil Procedure 12(h)(3), "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3). "[A] court may raise the question of subject matter jurisdiction, sua sponte, at any time during the pendency of the action . . . ." Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002); see also 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."). Thus, a court may remand a case sua sponte for lack of subject matter jurisdiction. Scofield v. Ball, No. 11-0378, 2011 WL 830104, at *1 (S.D. Cal. Mar. 4, 2011) (citing Franklin v. Murphy, 745 F.2d 1221 (9th Cir. 1984)).

When a case is removed, "jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 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). Generally speaking, the two ways a party may bring a case within the jurisdiction of the federal courts are: (1) diversity of citizenship under 28 U.S.C. § 1332; and (2) federal question under 28 U.S.C. § 1331. William W. Schwarzer, et al., California Practice Guide: Federal Civil Procedure Before Trial § 2:2, at 2A-1 (2006). Neither basis for jurisdiction is present in this case. Removal also is not authorized under 28 U.S.C. § 1443(1), contrary to Defendants' contention.

A. Federal Question Jurisdiction

Defendants suggest that this action presents a federal question-namely, claims under 42 U.S.C. §§ 1983 and 1988-and thus that federal-question jurisdiction exists pursuant to 28 U.S.C. § 1331. (Not. ¶ 7.) The "presence or absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar, 482 U.S. at 392 (emphasis added). A federal defense or counter-claim does not give rise to federal-question jurisdiction. Franchise Tax Bd. v. Constr. Laborers Vacation Trust for S. , 463 U.S. 1, 14 (1983).

Although Defendants have improperly failed to attach the complaint to their notice of removal, they represent that Plaintiff has filed "an unlawful detainer complaint." (Not. ¶ 4.) Defendants have not identified any other claims asserted in the complaint. From this, the Court understands that the complaint states a single claim for unlawful detainer under California law. An unlawful detainer action does not arise under federal law. See Indymac Federal Bank, F.S.B.v. Ocampo, No. 09-2337, 2010 WL 234828, *2 (C.D. Cal. Jan. 13, 2010) (finding no subject matter jurisdiction where complaint stated only an unlawful detainer claim). Defendants' Notice of Removal appears to assert numerous claims, including federal claims, against Plaintiff.

Not. ΒΆΒΆ 7, 17.) Defendants' claims are counter-claims and thus do not give rise to federal question jurisdiction. See Franchise Tax Bd., 463 U.S. at 14. This case therefore does not present a federal ...


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