UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
November 19, 2012
TITLE BANK OF NEW YORK MELLON
MICHAEL JOHNSON, ET AL.
The opinion of the court was delivered by: Honorable Dolly M. Gee, United States District Judge
Present: The Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE
VALENCIA VALLERY NOT REPORTED
Deputy Clerk Court Reporter
Attorneys Present for Plaintiff(s) Attorneys Present for Defendant(s)
None Present None Present
Proceedings: IN CHAMBERS-ORDER REMANDING ACTION TO LOS ANGELES
COUNTY SUPERIOR COURT
On February 3, 2012, Plaintiff Bank of New York Mellon filed a Complaint in Los Angeles County Superior Court for unlawful detainer against Defendants Michael Johnson, Regina Johnson, Brian Smith, and Daphne Harper [Doc. #3]. The Complaint alleges that Plaintiff acquired title to the property where Defendants reside following foreclosure proceedings on or about June 24, 2011. (Compl., ¶ 5.) On September 10, 2011, Plaintiff caused to be served on Defendants a three-day notice to quit, but Defendants have failed to deliver possession of the property to date. (Id. at ¶¶ 6-8.)
Defendant Smith removed the case to this Court on October 1, 2012 on the basis of federal question jurisdiction under 28 U.S.C. § 1331, asserting that the action arises under the Fourteenth Amendment to the United States Constitution [Doc. # 3]. The Complaint, however, raises no federal question. Federal jurisdiction cannot rest upon an actual or anticipated defense or counterclaim. Vaden v. Discover Bank, 556 U.S. 49, 60, 129 S.Ct. 1262, 173 L.Ed.2d 206 (2009). Moreover, Defendants do not assert that this Court has diversity jurisdiction under 28 U.S.C. § 1332(a), as the amount in controversy does not appear to exceed $75,000. Additionally, it appears that removal was untimely because Defendant waited more than 30 days to file the Notice of Removal. See 28 U.S.C. § 1446(b).
"The burden of establishing federal subject matter jurisdiction falls on the party invoking removal." Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 944 (9th Cir. 2009) (citing Toumajian v. Frailey, 135 F.3d 648, 652 (9th Cir. 1998)). There is a "strong presumption against removal jurisdiction," and courts must reject it "if there is any doubt as to the right of removal in the first instance." Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010) (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)) (internal quotation marks omitted).
Because Defendant has not established a basis for removal jurisdiction on the face of the Notice of Removal, this action is hereby REMANDED to Los Angeles County Superior Court.
IT IS SO ORDERED.
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