ORDER AND FINDINGS & RECOMMENDATIONS
Pending before the court is plaintiff's January 4, 2012 motion to remand. Defendant Carla Garces has now twice failed to file an opposition to the motion. See Doc. No. 4. Accordingly, the court will proceed to the merits of plaintiff's motion. Furthermore, the court has determined that the matter shall be submitted upon the record and briefs on file and accordingly, the date for hearing of this matter shall be vacated. Local Rule 230.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
On September 19, 2011, a trustee's sale was held as to real property located at 1566 Poppy Hills Lane, Tracy, CA 95377 ("the Property"). See Notice of Removal ("NOR'), Doc. No. 1 at 18-20. Marc Leon Estrada and Marina P. Estrada, were listed as joint tenants of the property. Id. The property was conveyed to plaintiff Wells Fargo Delaware Trust Company, N.A., as Trustee. Id.
On September 22, 2011, plaintiff served on the Property a written "Notice to Occupant(s) to Vacate Premises." NOR, Doc. No. 1 at 22-23. This notice informed the occupants of the Property that they were to vacate the property within three days unless they were a "'bona fide tenant' under a 'bona fide lease' as those terms are used in the Protecting Tenants at Foreclosure Act of 2009 (PFTA), in which event it will be necessary for you to vacate the premises within NINETY (90) days after service upon you of this notice; . . . ." Id. at 22.
On October 19, 2011, plaintiff filed a verified complaint for unlawful detainer in the San Joaquin County Superior Court. See NOR, Doc. No. 1 at 8-11. Plaintiff's complaint named as defendants Marc Leon V. Estrada and Marina P. Estrada, the former homeowners of the property. Id.
On October 31, 2011, Carla Graces, the rental tenant at the property, filed a Prejudgment Claim of Right to Possession in the San Joaquin County Superior Court. NOR, Doc. No. 1 at 14-15.
On December 29, 2011, Garces*fn1 filed a Notice of Removal pursuant to 28 U.S.C. §§ 1331 seeking to remove the unlawful detainer action filed by plaintiff HPROF in the San Joaquin County Superior Court.
On January 4, 2012, plaintiff filed a motion to remand on the ground that there does not exist jurisdiction in this court and the Notice of Removal is untimely.
When reviewing a notice of removal, "it is to be presumed that a cause lies outside the limited jurisdiction of the federal courts and the burden of establishing the contrary rests upon the party asserting jurisdiction." Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (quoting Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (internal quotation marks omitted)). "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). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).
The propriety of removal requires the consideration of whether the district court has original jurisdiction of the action; i.e., whether the case could have originally been filed in federal court based on a federal question, diversity of citizenship, or another statutory grant of jurisdiction. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). If the case is within the original jurisdiction of the district court, removal is proper so long as the defendant complied with the procedural requirements set forth in 28 U.S.C. § 1446. If the case is not within the original jurisdiction of the district court, removal is improper. The absence of subject matter jurisdiction is not waivable by the parties. See Am. Fire & Cas. Co. v. Finn, 341 U.S. 6 (1951).
With the Notice of Removal, defendant provides a copy of the complaint filed in San Joaquin County Superior Court. The complaint contains a single claim for unlawful detainer. In defendant's removal notice, she asserts that the court has jurisdiction pursuant to the PTFA. Plaintiff's complaint for unlawful detainer does not state claims under any federal law. Rather, defendant appears to assert the PTFA is at issue by virtue of defendant's defense to the action.
Removal, however, cannot be based on a defense, counterclaim, cross-claim, or third-party claim raising a federal question, whether filed in state or federal court. See Vaden v. Discover Bank, 556 U.S. 49 (2009); Hunter, 582 F.3d at 1042-43; Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 327 (5th Cir. 1998); Preciado v. Ocwen Loan Servicing, 2011 WL 977819, at *1 (C.D. Cal. Mar. 18, 2011); Fed. Nat'l Mortg. Ass'n. v. Bridgeman, 2010 WL 5330499, at *4 (E.D. Cal. Dec. 20, 2010). The complaint indicates that the only cause of action is one for unlawful detainer, which arises ...