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Federal Home Loan Mortgage Corp. v. D. Leigh Aveling

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


January 4, 2013

FEDERAL HOME LOAN MORTGAGE CORP.
v.
D. LEIGH AVELING, AN INDIVIDUAL, TIFFANY AVELING, AN INDIVIDUAL, AND DOES 1 THROUGH 10, INCLUSIVE

The opinion of the court was delivered by: Honorable VIRGINIA A. Phillips, U.S. District Judge

PRIORITY SEND

CIVIL MINUTES -- GENERAL

PRESENT: HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE

Marva Dillard None Present Courtroom Deputy Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS: None None

PROCEEDINGS: MINUTE ORDER REMANDING ACTION TO THE CALIFORNIA SUPERIOR COURT FOR THE COUNTY OF RIVERSIDE (IN CHAMBERS)

On January 2, 2013, Defendant D. Leigh Aveling removed this action from the Superior Court for the County of Riverside. Defendant alleges the Court subject-matter jurisdiction to hear this matter pursuant to federal question jurisdiction. (See Not. of Removal (Doc. No. 1) at 2.) For the following reasons, the REMANDS the action to the California Superior Court for the County of INCLUSIVE ORDER of January 4, 2013 Removal jurisdiction is governed by statute. See 28 U.S.C. §1441. The Ninth applies a strong presumption against removal jurisdiction, ensuring "the always has the burden of establishing that removal is proper." Gaus v. Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Nishimoto v. Federman- & Assocs., 903 F.2d 709, 712 n.3 (9th Cir. 1990)); see also In re Ford Motor Co./Citibank, 264 F.3d 952, 957 (9th Cir. 2001) ("The party asserting federal jurisdiction bears the burden of proving the case is properly in federal court."). "If at before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c); FW/PBS, Inc. v. 493 U.S. 215, 231 (1990) ("federal courts are under an independent to examine their own jurisdiction"); see also Fed. R. Civ. P. 12(h)(3) ("If court determines at any time that it lacks subject-matter jurisdiction, the court dismiss the action.")

Defendant alleges the basis for removal is federal question jurisdiction. From face of the Complaint, however, Plaintiff's only claim is for unlawful detainer, a state law action. See Franchise Tax Bd. v. Constr. Laborers Vacation 463 U.S. 1, 10 (1983) (holding that a defendant may not remove a case to federal court unless the basis for federal jurisdiction is apparent on the face of the complaint). Without a federal question, there is no federal question jurisdiction. Accordingly, the Court REMANDS this matter to the California Superior Court for the of Riverside.

IT IS SO ORDERED.

20130104

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