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Jeffrey Lew v. U.S. Bank National Association

November 7, 2011

JEFFREY LEW,
PLAINTIFF,
v.
U.S. BANK NATIONAL ASSOCIATION, FCI LENDER SERVICES, AND DOES 1 THROUGH 100, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Richard Seeborg United States District Judge

*E-Filed 11/7/11*

For the Northern District of California United States District court

ORDER DENYING MOTION TO REMAND

I. INTRODUCTION

Plaintiff filed this action in the Contra Costa County Superior Court alleging violations of the federal Truth in Lending Act (TILA), 15 U.S.C. § 1601, and various state laws. Defendants 20 removed the case to this court. Plaintiff, appearing pro se at least for purposes of removal, filed a 21 document styled as an "Objection to Removal," to which defendants replied with an opposition 22 brief. Pursuant to Civil Local Rule 7-1(b), the motion is suitable for disposition without oral 23 argument, and for the reasons stated below, is denied.

II. BACKGROUND

Plaintiff Jeffery Lew filed this action on September 9, 2011, in the Contra Costa County Superior Court against U.S. Bank National Association and FCI Lender Services, advancing claims 27 for relief for: (1-2) declaratory and injunctive relief; (3) violations of the Truth in Lending Act under California Financial Code § 4970 and 15 U.S.C. § 1601; (4) fraudulent omissions; (5) violations of California Business & Professions Code § 17200; and (6) an accounting. On September 13, 2011, 2 defendants filed a notice of removal on the eve of a hearing on Lew's motion to restrain defendants 3 temporarily from proceeding with an anticipated foreclosure sale. The notice of removal deprived 4 the Superior Court of jurisdiction and precluded plaintiff from obtaining temporary injunctive relief.

The next day, Lew's home was sold at auction. On October 13, 2011, plaintiff filed a document 6 entitled "Objection to Removal," but failed to notice it properly, as required by Local Rule 7-2

III. LEGAL STANDARD

A defendant may remove to federal court "any civil action brought in a State court of which 10 the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). See also id.

(Notice and Supporting Papers). On October 26, defendants filed an opposition brief.

at § 1446(b) (defendant must file a notice of removal within 30 days after receiving the original pleading), and Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009) (courts strictly construe the removal statute against finding jurisdiction and the defendant bears the burden of establishing the basis for removal). Removal is appropriate if a case originally 15 filed in state court presents a federal question "arising under" the Constitution, treaties, or laws of the United States. Id. at § 1331. Caterpillar, Inc v. Williams, 482 U.S. 386, 392 (1987). Under the well-pleaded complaint rule, the existence of a federal question is ordinarily determined by 18 reference to the face of the plaintiff's complaint. Sparta Surgical Corp. v. Assoc. of Sec. Dealers, 159 F.3d 1209, 1211 (9th Cir. 1998). However, the exercise of federal question jurisdiction is also 20 appropriate if "it appears that some substantial, disputed question of federal law is a necessary 21 element of one of the well-pleaded state claims." Franchise Tax Bd. of State of Cal. v. Construction 22 80 F.3d 339, 346 (9th Cir. 1996) ("when a claim can be supported by alternative and independent 24 [state and federal] theories federal question jurisdiction does not attach because federal law is not a 25 necessary element of the claim").

the district court may determine all issue therein, or, in its discretion, may remand all matters in 28 which State law predominates." Id. at ยง 1441(c). ...


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