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Enks Enterprises Inc. As Trustee For Marbury Trust #1008 v. Timothy

November 4, 2011

ENKS ENTERPRISES INC. AS TRUSTEE FOR MARBURY TRUST #1008
v.
TIMOTHY



The opinion of the court was delivered by: The Honorable David O. Carter, Judge

CIVIL MINUTES - GENERAL

Title:

DOCKET ENTRY

[I hereby certify that this document was served by first class mail or Government messenger service, postage prepaid, to all counsel (or parties) at their respective most recent address of record in this action on this date.]

Date:____________ Deputy Clerk:

JULIE BARRERA Not Present

Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:

NONE PRESENT NONE PRESENT

PROCEEDING (IN CHAMBERS): ORDER REMANDING CASE FOR LACK OF SUBJECT

MATTER JURISDICTION

After reviewing the instant case, the Court is remanding it to Orange County Superior Court for lack of subject matter jurisdiction. Remand may be ordered for lack of subject matter jurisdiction or any defect in the removal procedure. 28 U.S.C. § 1447(c). A defendant may remove a state action only if the plaintiff could have originally filed the action in federal court. See 28 U.S.C. § 1441. "The burden of establishing federal jurisdiction is on the party seeking removal, and the removal statute is strictly construed against removal jurisdiction." Prize Frize, Inc. v. Matrix (U.S.), Inc., 167 F.3d 1261, 1265 (9th Cir. 1999); see Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

On July 27, 2011, Plaintiff filed suit against Defendant for Unlawful Detainer in Orange County Superior Court. On August 26, 2011, Defendant removed this action to this Court. However, this Court does not have federal question jurisdiction pursuant to 28 U.S.C. § 1331. In the Notice of Removal, Defendant failed to allege that Plaintiff's Complaint alleges or pleads any claim raising a federal question. The face of the Complaint states only one cause of action: Unlawful Detainer.

Unlawful Detainer actions arise under state, not federal, law. See Cal. Code. Civ. P. ยง 1161. Defendant instead alleged that the Court has federal question jurisdiction because Defendant raises federal questions relating to Article III common law issues. However, as the existence of federal question jurisdiction is determined by reference to the Complaint, not to any asserted ...


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