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Sl Capital Enterprises, LLC v. Belema Debra Ogula; Lloyd Nsek and

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


January 24, 2012

SL CAPITAL ENTERPRISES, LLC
v.
BELEMA DEBRA OGULA; LLOYD NSEK AND DOES 1-10

The opinion of the court was delivered by: Honorable VIRGINIA A. Phillips, U.S. District Judge

PRIORITY SEND

CIVIL MINUTES -- GENERAL

PRESENT: HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE

Marva Dillard None Present Courtroom Deputy Court Reporter

ATTORNEYS PRESENT FOR

PLAINTIFFS:

ATTORNEYS PRESENT FOR

DEFENDANTS:

None None

PROCEEDINGS: MINUTE ORDER REMANDING ACTION TO THE

CALIFORNIA SUPERIOR COURT FOR THE COUNTY OF SAN BERNARDINO (IN CHAMBERS)

On October 19, 2011, Plaintiff SL Capital Enterprises, LLC ("Plaintiff") filed a for unlawful detainer ("Complaint") against Defendants Belema Debra

and Lloyd Nsek ("Defendants") in the California Superior Court for the County Bernardino. (Not. of Removal.) On January 3, 2012, Defendant Nsek removed the action on the basis of this Court's diversity jurisdiction, 28 U.S.C. § and federal question jurisdiction, 38 U.S.C. § 1331. (See id.)

Removal jurisdiction is governed by statute. See 28 U.S.C. §1441. The Ninth applies a strong presumption against removal jurisdiction, ensuring "the

always has the burden of establishing that removal is proper." Gaus v. Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Nishimoto v. Federman-- & Assocs., 903 F.2d 709, 712 n.3 (9th Cir. 1990)); see also In re Ford Motor Co./Citibank, 264 F.3d 952, 957 (9th Cir. 2001) ("The party asserting federal jurisdiction bears the burden of proving the case is properly in federal court."). "If at before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c); FW/PBS, Inc. v. 493 U.S. 215, 231 (1990) ("federal courts are under an independent to examine their own jurisdiction"); see also Fed. R. Civ. P. 12(h)(3) ("If court determines at any time that it lacks subject-matter jurisdiction, the court dismiss the action.")

Defendant claims removal is proper because the Court has diversity jurisdiction, 28 U.S.C. § 1332. (See Not. of Removal at 2.) Upon review of the and the Notice of Removal, however, the Court finds no basis for diversity jurisdiction in this case. Defendant states in the Notice that Plaintiff SL Capital Enterprises is a California corporation, and Defendant is a resident of California. at 8.) As diversity jurisdiction requires complete diversity of the parties, Defendant has not shown the Court has jurisdiction based on diversity under 28 § 1332.

Defendant also alleges the basis for removal is federal question jurisdiction, 28 § 1331, because the claims arise under federal law. (See id. at 4-8.) From face of the Complaint, however, Plaintiff's only claim is for unlawful detainer, a state law action. See Franchise Tax Bd. v. Constr. Laborers Vacation 463 U.S. 1, 10 (1983) (defendant may not remove case to federal court basis for federal jurisdiction apparent on the face of the complaint). Accordingly, Defendant has not shown the Court has jurisdiction based on federal under 28 U.S.C. § 1331.

"If it clearly appears on the face of the [Notice of Removal] and any exhibits thereto that removal should not be permitted, the court shall make an order for summary remand." 28 U.S.C. § 1446(c)(4). Pursuant to 28 U.S.C. § 1446(c)(4), Court has examined the Notice of Removal and concludes that Defendants have met their burden of establishing that this case is properly in federal court. See In Ford Motor Co./Citibank (South Dakota), N.A., 264 F.3d 952, 957 (9th Cir. 2001) party asserting federal jurisdiction bears the burden of proving the case is properly in federal court."). Accordingly, the Court REMANDS this action to the

Court of California, San Bernardino County.

IT IS SO ORDERED.

20120124

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