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Federal National Mortgage Association, Its Assignees and/Or v. Jose Dejesus Gonzalez
September 13, 2011
FEDERAL NATIONAL MORTGAGE ASSOCIATION, ITS ASSIGNEES AND/OR SUCCESSORS, PLAINTIFF,
JOSE DEJESUS GONZALEZ, AND DOES 1-10, INCLUSIVE, DEFENDANT(S).
FINDINGS AND RECOMMENDATIONS
On September 9, 2011, defendant, proceeding pro se, filed a notice of
removal of this unlawful detainer action from the Superior Court of
the State of California for San Joaquin County, along with a request
to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.*fn1
Dckt. Nos. 1, 2. This case is before the undersigned in
accordance with 28 U.S.C. § 636(b)(1) and Eastern District of
California Local Rule 302(c)(21).
This court has an independent duty to ascertain its jurisdiction and may remand sua sponte for lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c). "The burden of establishing federal jurisdiction is on the party seeking removal, and the removal statute is strictly construed against removal jurisdiction." Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). "Federal 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). As explained below, defendant has failed to meet their burden.
Defendant's notice of removal is predicated upon the court's federal question jurisdiction. Dckt. No. 1 at 2 (citing 28 U.S.C. §§ 1441(b), 1446(a)). Defendant contends that plaintiff alleges claims under the Federal Fair Debt Collections Act (FDCPA), the Real Estate Settlement Procedures Act (RESPA), the Truth in Lending Act (TILA), Generally Accepted Accounting Principles (GAAP), and the Universal Commercial Code (UCC). Id. However, a review of the complaint reveals that plaintiff does not allege any federal claims; instead, plaintiff alleges only unlawful detainer under state law. Id. at 5-8 (Compl.). Therefore, because defendant has not adequately established that plaintiff's complaint alleges a federal claim,*fn2 the court lacks subject matter jurisdiction and must remand the case.*fn3 See 28 U.S.C. § 1447(c).
Accordingly, IT IS RECOMMENDED that the above-captioned case be REMANDED to the Superior Court of the State of California in and for the County of San Joaquin.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).
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