United States District Court, N.D. California, San Jose Division
ORDER THAT CASE BE REASSIGNED WITH REPORT AND RECOMMENDATION THAT CASE BE REMANDED
PAUL S. GREWAL, District Judge.
Pending on the court's docket is a notice of removal of an unlawful detainer case that involves a probate dispute over real property. Defendants Michael P. Dedmon and Daniel Dedmon urge that removal is warranted on the basis of 28 U.S.C. §§ 1441(a) and (b). Defendants are incorrect. Because the court has not obtained the consent of the parties,  the case shall be reassigned with the report and recommendation that the case be remanded to state court for lack of subject matter jurisdiction.
First, Defendants are in-state California residents. Because Defendants reside in California, removal of their state court case on the basis of diversity is not an option.
Second, although Defendants suggest that this case may be removed on the basis of federal question jurisdiction, this is not so. Plaintiff Jacquie Depetris' complaint does not, on its face, raise a federal question. Depetris "states a single unlawful detainer claim, which falls outside federal question jurisdiction." While Defendants have filed a notice of claim of unconstitutionality,  Depetris' "complaint does not mention that statute or any other federal law." Defendants challenge to "the constitutionality of the provisions of California foreclosure and unlawful detainer law" for failing "to provide equal protection of the law afforded in a traditional proceeding in violation of California Constitution [Article] 1, Section 7 and the 14th and 5th Amendments of the United States" Constitution constitutes "either a defense or a counterclaim, neither of which would provide a basis for federal jurisdiction."
In sum, because removal was not warranted and subject matter jurisdiction is absent, the undersigned ...