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Wells Fargo Bank, N.A v. Mark Pineda; and Maria Pineda

February 13, 2012

WELLS FARGO BANK, N.A., PLAINTIFF,
v.
MARK PINEDA; AND MARIA PINEDA,
DEFENDANTS.



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

** E-filed February 13, 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NOT FOR CITATION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 Nos. 1, 5, 6]

INTRODUCTION

On January 27, 2012, defendants Mark and Maria Pineda (collectively, "Defendants"), 19 proceeding pro se, removed this case from Santa Clara County Superior Court. Docket No. 1 20 ("Notice of Removal"). Plaintiff Wells Fargo Bank, N.A. ("Wells Fargo") moves to remand and 21 seeks immediate relief by applying ex parte for an order shortening time. Dkt. Nos. 4, 5. Because 22 not all of the parties have consented to the undersigned's jurisdiction, this court is unable to provide 23 the dispositive relief sought. For the reasons stated below, the undersigned DENIES the Motion to 24 Shorten Time, ORDERS that this case be reassigned to a district judge, and RECOMMENDS that 25 this action be summarily remanded to state court. 26

DISCUSSION

Wells Fargo filed this unlawful detainer action against defendants on October 5, 2011 in Santa Clara County Superior Court. Notice of Removal, p. 1. According to the complaint, Wells Fargo acquired the subject property, a Gilroy, CA residence, through a foreclosure trustee's sale on 2 August 19, 2011, in accordance with California Civil Code section 2924. Dkt. No. 1, Exh. A 3 Id. at ¶ 7. Defendants have not vacated the property. Id. at ¶ 8. 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 ¶ 5. On August 22, Wells Fargo served defendants with a three-day Notice to Quit. 4

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

U.S. 386, 392 (1987). If, after a court's prompt review of a notice of removal, "it clearly appears on 9 the face of the notice and any exhibits annexed thereto that removal should not be permitted, the 10 court shallmake an order for summary remand." 28 U.S.C. § 1446(c)(4) (emphasis added). These removal statutes are strictly construed against removal and place the burden on the defendant to demonstrate that removal was proper. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 13

Here, defendants assert that removal is proper based on federal question jurisdiction. See Notice of Removal ¶ 6. Federal courts have original jurisdiction over civil actions "arising under the 16 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). 14

Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A claim "arises under" 17 federal law if, based on the "well-pleaded complaint rule," the plaintiff alleges a federal cause of 18 action. Vaden v. Discovery Bank, 129 S. Ct. 1262, 1272 (2009). Alternatively, the complaint may 19 establish that the plaintiff's right to relief "necessarily depends on resolution of a substantial 20 question of federal law." Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage 21 Laborers Vacation Trust, 463 U.S. 1, 27--28 (1983). Defenses and counterclaims asserting a federal 23 question do not satisfy this requirement. Discovery Bank, 129 S. Ct. at 1272. 24

25 federal Protecting Tenants at Foreclosure Act, 12 U.S.C. § 5220. Notice of Removal at ¶¶ 8. 26

However, the defendants raised this alleged violation in a demurrer, a responsive pleading, and -- as 27 noted above -- only the complaint can provide the basis for ...


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