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Harmin Investments, Lp #109 v. Essi Mansoori; Hedieh Mansoori; and Does 1-20

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


January 18, 2012

HARMIN INVESTMENTS, LP #109, PLAINTIFF,
v.
ESSI MANSOORI; HEDIEH MANSOORI; AND DOES 1-20, INCLUSIVE,
DEFENDANTS.

The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed January 18, 2012 **

NOT FOR CITATION

United States District Court For the Northern District of California

ORDER THAT CASE BE REASSIGNED TO A DISTRICT COURT JUDGE REPORT AND RECOMMENDATION [Re: Docket No. 5]

INTRODUCTION

On December 6, 2011, third-party claimant Miles Dawson, proceeding pro se, removed this case 19 from Santa Clara County Superior Court. Dkt. No. 1 ("Notice of Removal"). Plaintiff Harmin 20 Investments ("Harmin") moves to remand. Dkt. No. 5. Neither Dawson nor the named defendants 21 have opposed the motion. Because none of the parties have consented to the undersigned's 22 jurisdiction, this court in unable to provide the dispositive relief sought. For the reasons stated 23 below, the undersigned ORDERS that this case be reassigned to a district judge, and 24 RECOMMENDS that the plaintiff's motion to remand be VACATED and the case summarily 25 remanded. 26

DISCUSSION

Harmin filed this unlawful detainer action against defendants Essi and Hedieh Mansoori on August 23, 2011 in Santa Clara County Superior Court. Notice of Removal, p. 3 ("Complaint").

According to the complaint, Harmin acquired the subject property, a San Jose residence, through a 2 foreclosure trustee's sale on August 8, 2011, in accordance with California Civil Code section 2924. 3

¶ 8. Defendants did not respond to the Notice, nor did they vacate the property. Id. at ¶ 9. 5

6 matter jurisdiction over the complaint. 28 U.S.C. § 1441. Removal jurisdiction can be based on 7 diversity of citizenship or on the existence of a federal question. Caterpillar Inc. v. Williams, 482 8

Complaint at ¶ 6. On August 8, Bay Valley served defendants with a three-day Notice to Quit. Id. at 4

Removal to federal court is proper where the federal court would have had original subject

U.S. 386, 392 (1987). Ordinarily, "federal jurisdiction exists only when a federal question is 9 presented on the face of the plaintiff's properly pleaded complaint." Id. Thus, "the plaintiff [is] the 10 master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Id.

If, after a court's prompt review of a notice of removal, "it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shallmake an order 13 for summary remand." 28 U.S.C. § 1446(c)(4) (emphasis added). These removal statutes are strictly 14 construed against removal and place the burden on the defendant to demonstrate that removal was 15 proper. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus v. 16

Here, Dawson asserts that removal is proper based on federal question jurisdiction. See

Notice of Removal ¶ 5. Federal courts have original jurisdiction over civil actions "arising under the 19 Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). 17

Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A claim "arises under" 20 federal law if, based on the "well-pleaded complaint rule," the plaintiff alleges a federal cause of 21 action. Vaden v. Discovery Bank, 129 S. Ct. 1262, 1272 (2009). Alternatively, the complaint may 22 establish that the plaintiff's right to relief "necessarily depends on resolution of a substantial 23 question of federal law." Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage 24 Laborers Vacation Trust, 463 U.S. 1, 27--28 (1983). Defenses and counterclaims asserting a federal 26 question do not satisfy this requirement. Discovery Bank, 129 S. Ct. at 1272. 27

Removal ¶ 5. However, Harmin's complaint alleges only a cause of action for unlawful detainer

Leasehold & Easement, 524 F.3d 1090, 1100 (9th Cir. 2008) (quoting Franchise Tax Bd. v. Constr. 25

Dawson asserts that Harmin "actually filed a [f]ederal [q]uestion in state court." Notice of under California law; it does not allege any federal claims whatsoever. See Complaint. Moreover, 2 resolving Harmin's unlawful detainer claim does not depend on resolution of any substantial issues 3 of federal law. Accordingly, Dawson has failed to show that this action arises under federal law. 4

Neither is there diversity jurisdiction over this action. Federal subject-matter jurisdiction

5 based on diversity requires complete diversity of citizenship and an amount in controversy in excess 6 of $75,000. 28 U.S.C. § 1332(a).*fn1 In this matter, all parties, including Dawson, are citizens of 7

$10,000. Complaint p. 1. Therefore, there is no basis for this court to exercise jurisdiction based 9 either upon a federal question or diversity. 10

Notice of Removal that he sought to intervene in the state court action, but has provided no evidence

that would allow this court to conclude that he has intervened and is capable of removing this 13 action. See Notice of Removal ¶ 3. 28 U.S.C. § 1441 permits the defendant to remove an action to 14 federal court. However, because this court concludes that there is no basis for it to exercise 15 jurisdiction based either upon a federal question or diversity, it declines to analyze whether Dawson 16 is a defendant who may properly remove this action. 17

Because the parties have yet to consent to the undersigned's jurisdiction, this court ORDERS

19 the Clerk of the Court to reassign this case to a District Court judge. The undersigned further 20

Superior Court. Pursuant to Federal Rule of Civil Procedure 72(b), any party may serve and file 22 objections to this Report and Recommendation within fourteen days after being served. 23

California, and plaintiff's complaint expressly states that the amount in controversy is less than 8

Finally, the court notes that Dawson may not even be a party to this action. He states in the

CONCLUSION

RECOMMENDS that the newly assigned judge summarily remand the case to Santa Clara County 21

IT IS SO ORDERED.

Notice will be electronically mailed to: Kirkman Hoffman kirk@kirkhoffman.com 3 Notice will be mailed to: 4 Miles Dawson 5 3328 Moulin Lane San Jose, CA 95135 6 2 Counsel are responsible for distributing copies of this document to co-counsel who have not 7 registered for e-filing under the court's CM/ECF program.


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