UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
February 21, 2013
LEONARDO DANTE, ET AL.
The opinion of the court was delivered by: Honorable Jesus G. Bernal, U.S. District Judge
CIVIL MINUTES -- GENERAL
PRESENT: HONORABLE JESUS G. BERNAL, U.S. DISTRICT JUDGE
PROCEEDINGS: MINUTE ORDER (1) DENYING PLAINTIFF'S EX PARTE APPLICATION (DOC. NO. 5); AND (2) REMANDING ACTION TO THE CALIFORNIA SUPERIOR COURT FOR THE COUNTY OF COUNTY (IN CHAMBERS)
On February 13, 2013, Plaintiff Anderson Properties filed an Ex Parte Application for Remand. (Doc. No. 5.) The Court finds that Plaintiff has failed to that it would "be irreparably prejudiced if the underlying motion is heard to regular noticed motion procedures"; thus, seeking remand through an parte application is improper. Mission Power Eng'g Co. v. Cont'l Cas. Co., 883 F. 488, 492 (C.D. Cal. 1995).
Nevertheless, "[i]f at any time before final judgment it appears that the district lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990) ("federal courts are independent obligation to examine their own jurisdiction"); see also Fed. R. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.") Thus, the Court independently whether it has jurisdiction over this matter.
On October 9, 2012, Plaintiff filed a complaint for unlawful detainer ORDER of February 21, 2013 ("Complaint") against Defendants Leonardo Dante, Helen Peroni, and Daniel and all unknown occupants in the Superior Court of California, County of (Compl., attached to Not. of Removal (Doc. No. 1).) On February 1, Defendants Linette Ochoa and Daniel Ochoa removed the action on the basis federal question jurisdiction, 28 U.S.C. §§ 1331. (See Not. of Removal at 1-3.)
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.").
Defendants appear to allege federal question jurisdiction (28 U.S.C. § 1331) basis for removal. (See Not. of Removal at 2 (referencing "federal question", 6 (referencing federal statutes against mail fraud).) From the face of the Complaint, Plaintiff's only claim is for unlawful detainer, a California state law action. Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 10 (1983) (defendant may not remove case to federal court unless basis for federal jurisdiction apparent on the face of the complaint). Accordingly, Defendants have not established that the Court has jurisdiction based on federal question under 28 § 1331.
Defendants have not met their burden of establishing that the case is in federal court. Gaus, 980 F.2d at 566. Accordingly, the Court REMANDS the action to the Superior Court of California for the County of Additionally, this is Defendants' third attempt to remove the same case without a proper basis for this Court's jurisdiction. (See Notice of Removal, No. 12- cv-2226-UA; Notice of Removal. 13-cv-0054-UA.) Both of the prior actions were summarily remanded due to improper removal on the basis of the identical state law detainer action. Parties may not remove an action two or more times on ORDER of February 21, 2013 same basis. Seedman v. U.S. Dist. Court for Cent. Dist. of Calif., 837 F.2d 413, (9th Cir. 1988) (holding a district court lacked jurisdiction where a defendant's removal petition was based on the same ground as the prior removal); Homestead Ins. Co., Inc. v. Casden, 234 No. 05-55060, 2007 WL 1296734 (9th Cir. 2, 2007) (same). The Court cautions Defendants that if they remove the Court action to this Court again without alleging a proper basis for jurisdiction, Defendants may be subject to sanctions. See, e.g., Quantum Servicing v. Castaneda, No. C-11-2890 EMC, 2011 WL 3809926, at *3 (N.D. Cal. Aug. 2011) (cautioning pro se defendant who removed an unlawful detainer action "should she or the other defendants in the case attempt a removal a second they risk being sanctioned."); SD Coastline v. Reyes, No. 10cv1824 LAB 2010 WL 4009557, at *1 (Oct. 12, 2010) (cautioning pro se defendant who removed an unlawful detainer action two times that "[a]ny further removals in of [the order remanding the action] are punishable by sanctions.").
IT IS SO ORDERED.
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