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Wells Fargo Bank, N.A v. Consuelo Lombera; Maria Lombera

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


February 16, 2012

WELLS FARGO BANK, N.A.,
PLAINTIFF,
v.
CONSUELO LOMBERA; MARIA LOMBERA,
DEFENDANTS.

The opinion of the court was delivered by: Lucy H. Koh United States District Judge

United States District Court For the Northern District of California

ORDER REMANDING UNLAWFUL DETAINER ACTION TO SANTA CLARA COUNTY SUPERIOR COURT AND DENYING APPLICATION TO PROCEEDING IN FORMA PAUPERIS

Consuelo Lombera and Maria Lombera ("Defendants") have filed a notice of removal of 17 their Santa Clara County Superior Court unlawful detainer action to this Court. See ECF No. 1. 18 Wells Fargo Bank, N.A. ("Defendant") has moved to remand the case to state court claiming that 19 this Court lacks subject matter jurisdiction. ECF Nos. 4 & 10. The deadline to file a response has 20 passed, and therefore Plaintiffs' motion is unopposed. See Civil L.R. 7-3(a). Pursuant to Civil 21 Local Rule 7-1(b), the Court finds that Plaintiff's motion is suitable for decision without oral 22 argument. Accordingly, the motion hearing set for February 23, 2012 is VACATED. 23

In the case of a removed action, if it appears at any time before final judgment that the court 24 lacks subject matter jurisdiction, the court must remand the action to state court. 28 U.S.C. 25 § 1447(c). The removing defendant bears the burden of establishing that removal is proper. See 26 Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). 27

Defendants allege, as the basis for removal, that this court has subject matter jurisdiction pursuant 28 to 28 U.S.C. § 1331. See Notice of Removal at 1-2, ECF No. 1. Federal courts have original 2 jurisdiction over civil actions "arising under the Constitution, laws, or treaties of the United 3 States." 28 U.S.C. § 1331. A claim "arises under" federal law, if based on the "well-pleaded 4 complaint," the plaintiff alleges a federal claim for relief. Vaden v. Discovery Bank, 129 S.Ct. 5

A review of the original complaint filed in state court discloses no federal statutory or 7 constitutional question. An unlawful detainer cause of action such as the one asserted here does 8 not raise a federal question. See Litton Loan Servicing, L.P. v. Villegas, 2011 U.S. Dist. LEXIS 9 App. 3d 162, 168, 136 Cal. Rptr. 596 (1977) (remanding unlawful detainer action to state court based on lack of federal question jurisdiction); Partners v. Gonzalez, 2010 U.S. Dist. LEXIS 95714, at * 2-3 (N.D. Cal. Aug. 30, 2010) (same). Moreover, it is well-settled that a case may not 13 be removed to federal court on the basis of a federal defense. See Franchise Tax Bd. v. 14 Construction Laborers Vacation Trust, 463 U.S. 1, 10 (1983). Thus, to the extent Defendants' 15 defenses or counterclaims to the unlawful detainer action are based on alleged violations of federal 16 law, those allegations do not provide a basis for federal jurisdiction. 17

"It is the duty of the District Court to examine any application for leave to proceed in forma pauperis and determine whether the proposed proceeding has merit and if it appears that the 27 proceeding is without merit, the court is bound to deny a motion seeking leave to proceed in forma pauperis." Because this Court lacks jurisdiction, and therefore the proceeding is non-meritorious, 28 Plaintiffs' application is DENIED. 2 Case No.: 11-CV-06390-LHK ORDER REMANDING UNLAWFUL DETAINER ACTION 1262, 1271 (2009). 6

8018, 2011 WL 204322, at * 2 (N.D. Cal. Jan. 21, 2011) (citing Evans v. Superior Court, 67 Cal. 10

United States District Court For the Northern District of California

Accordingly, the unlawful detainer action is REMANDED to Santa Clara County Superior Court.*fn1

IT IS SO ORDERED.


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