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E-Trade Bank v. Harold E. Mainusch

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


February 6, 2013

E-TRADE BANK,
PLAINTIFF,
v.
HAROLD E. MAINUSCH, LAURA M. MAINUSCH, AND DOES 1 THROUGH 5, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Lucy H. Koh United States District Court

ORDER REMANDING UNLAWFUL DETAINER ACTION TO SANTA CLARA COUNTY SUPERIOR COURT

Defendants removed this action for unlawful detainer from the Santa Clara County Superior

Court on December 20, 2012. However, it appears that the Court lacks subject matter jurisdiction 18 over the removed action. Although Plaintiff has not moved to remand, this Court has a continuing 19 obligation to raise issues of subject matter jurisdiction whenever it appears that jurisdiction may be 20 lacking. Fed. R. Civ. P. 12(h)(3); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). 21

If a Court lacks subject matter jurisdiction over a removed action, that action must be remanded. 22 28 U.S.C. § 1447(c). Defendant bears the burden of establishing that removal is proper. 23 Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). 24 In the notice of removal, Defendants assert that grounds for removal exist because their 25 principal claim for relief arises under federal law. However, a defendant may remove a case to 26 federal court only if "the plaintiff's complaint establishes that the case 'arises under' federal law." 27 Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 10 (1983). It is well-28 settled that a case may not be removed to federal court on the basis of a federal defense. Id. at 14.

Rather, "the federal question must 'be disclosed upon the face of the complaint, unaided by the 2 answer.'" Provincial Gov't of Marinduque, 582 F.3d at 1086 (quoting Phillips Petroleum Co. v. 3 Texaco Inc., 415 U.S. 125, 127-28 (1974)). Because Plaintiff's complaint for unlawful detainer 4 raises no federal claims, there appears to be no basis for removal and no subject matter jurisdiction 5 in this Court. See, e.g., Litton Loan Servicing, L.P. v. Villegas, C 10-05478 PJH, 2011 WL 204322 6 (N.D. Cal. Jan. 21, 2011); Partners v. Gonzalez, C-10-02598 EDL, 2010 WL 3447678 (N.D. Cal. 7 Aug. 30, 2010). 8

Accordingly, the unlawful detainer action is hereby REMANDED to Santa Clara County Superior Court. 10

IT IS SO ORDERED.

20130206

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