IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 22, 2012
BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING LP, FKA COUNTRYWIDE HOME LOANS SERVICING, LP, PLAINTIFF,
DAVID J. SALAZAR; AND DOES 1-X, INCLUSIVE, DEFENDANT.
ORDER AND FINDINGS AND RECOMMENDATIONS
On December 21, 2011, defendant David Salazar, proceeding pro se, filed a notice of removal of this unlawful detainer action (Superior Court Case No. 124698) from the Superior Court of the State of California for Solano County. Dckt. No. 1. This case is before the undersigned in accordance with 28 U.S.C. § 636(b)(1) and Eastern District of California Local Rule 302(c)(21).
This court has an independent duty to ascertain its jurisdiction and may remand sua sponte for lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c). "The burden of establishing federal jurisdiction is on the party seeking removal, and the removal statute is strictly construed against removal jurisdiction." Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). As explained below, defendant has failed to meet that burden.
Defendant's notice of removal is predicated upon the court's federal question jurisdiction. Dckt. No. 1 at 1-2. However, a review of the complaint reveals that plaintiff does not allege any federal claims; instead, plaintiff alleges only unlawful detainer under state law. Dckt. No. 1-2 at 1-4 (Compl.). Therefore, because defendant has not adequately established that plaintiff's complaint alleges a federal claim,*fn1 the court lacks subject matter jurisdiction and must remand the case.*fn2 See 28 U.S.C. § 1447(c).
Accordingly, IT IS HEREBY ORDERED that the status (pretrial scheduling) conference currently set for hearing on May 2, 2012 is vacated.*fn3
Further, IT IS RECOMMENDED that:
1. The above-captioned case be REMANDED to the Superior Court of the State of California in and for the County of Solano; and
2. Plaintiff's petition to dismiss the state court action, Dckt. No. 3, be denied as moot. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).