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Green Bay Investments, Lp; Luan Nguyen v. Carlos Mejia; and Does 1-5

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


March 9, 2012

GREEN BAY INVESTMENTS, LP; LUAN NGUYEN, PLAINTIFFS,
v.
CARLOS MEJIA; AND DOES 1-5;
DEFENDANTS.

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

** E-filed March 9, 2012 **

NOT FOR CITATION

ORDER THAT CASE BE REASSIGNED TO A DISTRICT COURT JUDGE REPORT AND RECOMMENDATION [Re: Docket Nos. 1, 6, 7]

United States District Court For the Northern District of California

INTRODUCTION

On January 11, 2012, third-party claimant Josh Hamlin*fn1 , proceeding pro se, removed this 19 case from Santa Clara County Superior Court. Docket No. 1 ("Notice of Removal"). Plaintiffs 20 Green Bay Investments and Luan Nguyen (collectively "Plaintiffs") move to remand and seek 21 immediate relief by requesting that the motion be heard on shortened time. Dkt. Nos. 6, 7. Green 22

Bay has consented to the undersigned's jurisdiction, but Hamlin and named defendant Carlos Mejia 23 have not. Because not all of the parties have consented to the undersigned's jurisdiction, this court is 24 unable to provide the dispositive relief sought. For the reasons stated below, the undersigned 25 26 DENIES the Motion to Shorten Time, ORDERS that this case be reassigned to a district judge, and 2 RECOMMENDS that this action be summarily remanded to state court. 3

Green Bay filed this unlawful detainer action against defendants on December 13, 2011 in Santa Clara County Superior Court. Notice of Removal, Exh. A ("Complaint"). According to the 6 complaint, Green Bay acquired the subject property, a San Jose residence, through a foreclosure 7 trustee's sale on November 30, 2011. Id. at ¶ 3. On December 9, Green Bay served defendant with a 8 three-day Notice to Quit. Id. at ¶ 5. The defendant did not respond to the Notice, nor did he vacate 9 the property. Id. at ¶¶ 7-8. 10

matter jurisdiction over the complaint. 28 U.S.C. § 1441. Removal jurisdiction can be based on diversity of citizenship or on the existence of a federal question. Caterpillar Inc. v. Williams, 482 13

DISCUSSION

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 14 the face of the notice and any exhibits annexed thereto that removal should not be permitted, the 15 court shallmake an order for summary remand." 28 U.S.C. § 1446(c)(4) (emphasis added). These 16 removal statutes are strictly construed against removal and place the burden on the defendant to 17 demonstrate that removal was proper. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 18

Here, Hamlin asserts that removal is proper based on federal question jurisdiction. See Notice of Removal ¶ 5. Federal courts have original jurisdiction over civil actions "arising under the 21 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).

Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A claim "arises under" 22 federal law if, based on the "well-pleaded complaint rule," the plaintiff alleges a federal cause of 23 action. Vaden v. Discovery Bank, 129 S. Ct. 1262, 1272 (2009). Alternatively, the complaint may 24 establish that the plaintiff's right to relief "necessarily depends on resolution of a substantial 25 question of federal law." Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage 26

Laborers Vacation Trust, 463 U.S. 1, 27--28 (1983). Defenses and counterclaims asserting a federal 28 question do not satisfy this requirement. Discovery Bank, 129 S. Ct. at 1272.

Leasehold & Easement, 524 F.3d 1090, 1100 (9th Cir. 2008) (quoting Franchise Tax Bd. v. Constr. 27

Notice of Removal ¶ 5. However, Green Bay's complaint alleges only a cause of action for unlawful 3 detainer under California law; it does not allege any federal claims whatsoever. See Complaint. 4

Moreover, resolving Green Bay's unlawful detainer claim does not depend on resolution of any 5 substantial issues of federal law. Accordingly, Hamlin has failed to show that this action arises 6 under federal law. 7

8 based on diversity requires complete diversity of citizenship and an amount in controversy in excess 9 of $75,000. 28 U.S.C. § 1332(a).*fn2 In this matter, all parties, including Green Bay, are citizens of 10 $10,000. Complaint p. 1.

Therefore, there is no basis for this court to exercise jurisdiction based either upon a federal 13 question or diversity. 14

Because not all parties have consent to the undersigned's jurisdiction, this court ORDERS 16 the Clerk of the Court to reassign this case to a District Court judge. Green Bay's Motion to Shorten 17 RECOMMENDS that the newly assigned judge summarily remand the case to Santa Clara County 19 20

Hamlin asserts that Green Bay "has actually filed a [f]ederal [q]uestion action in state court."

Neither is there diversity jurisdiction over this action. Federal subject-matter jurisdiction California, and plaintiff's complaint expressly states that the amount in controversy is less than

CONCLUSION

Time is DENIED and the hearing on its Motion to Remand is VACATED. The undersigned further

Superior Court. Pursuant to Federal Rule of Civil Procedure 72(b), any party may serve and file 2 objections to this Report and Recommendation within fourteen days after being served. 3

IT IS SO ORDERED.

C12-00181 HRL Notice will be electronically mailed to: Daniel Paris parislaw1@msn.com 3 Notice will be mailed to: 4 Carlos J Mejia 3128 Coldwater Drive 5 San Jose, CA 95148 6 Josh Hamlin 3128 Coldwater Drive 7 San Jose, CA 95148 8

Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.


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