United States District Court, E.D. California
ORDER DIRECTING THE CLERK TO ASSIGN A UNITED STATES DISTRICT JUDGE TO THE ACTION
FINDINGS AND RECOMMENDATIONS REMANDING THE MATTER TO KERN COUNTY SUPERIOR COURT
FOR LACK OF JURISDICTION
JENNIFER L. THURSTON, Magistrate Judge.
Defendants Kenneth Menis and Mary Menis seek the removal of the unlawful detainer action initiated by Wells Fargo Bank, N.A. in Kern County Superior Court, Case No. S-1500-CL-288527. (Doc. 1 at 1-2, 5.) Because an action for unlawful detainer arises under California law, the Court lacks subject matter jurisdiction over the complaint. Accordingly, the Court recommends the action be REMANDED to Kern County Superior Court.
I. Removal Jurisdiction
Pursuant to 28 U.S.C. § 1441(a), a defendant has the right to remove a matter to federal court where the district court would have original jurisdiction. Caterpillar, Inc. v. Williams, 482 U.S. 286, 392 (1987). Specifically,
Except otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
28 U.S.C. § 1441(a). District courts have "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Id. at § 1331.
A party seeking removal must file a notice of removal of a civil action within thirty days of receipt of a copy of the initial pleading. Id. at § 1446(b). Removal statutes are to be strictly construed, and any doubts are to be resolved in favor of state court jurisdiction and remand. See Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). The party seeking removal bears the burden of proving its propriety. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996); Abrego v. Dow Chem. Co., 443 F.3d 676, 683-85 (9th Cir. 2006); see also Calif. ex. rel. Lockyer v. Dynegy, Inc., 2274 F.3d 831, 838 ("the burden of establishing federal jurisdiction falls to the party invoking the statute"). If there is any doubt as to the right of removal, "federal jurisdiction must be rejected." Duncan, 76 F.3d at 1485.
The district court has "a duty to establish subject matter jurisdiction over [a] removed action sua sponte, whether the parties raised the issue or not." United Investors Life Ins. Co. v. Waddell & Reed, Inc., 360 F.3d 960, 967 (9th Cir. 2004); see also Kelton Arms Condo. Homeowners Ass'n v. Homestead Ins. Co., 346 F.3d 1190, 1192-93 (9th Cir. 2003) (noting a distinction between procedural and jurisdictional defects and holding that a "district court must remand if it lacks jurisdiction"). Thus, the Sixth Circuit explained that a court "can, in fact must, dismiss a case when it determines that it lacks subject matter jurisdiction, whether or not a party has a filed a motion." Page v. City of Southfield, 45 F.3d 128, 133 (6th Cir. 1995).
II. Discussion and Analysis
The determination of subject matter jurisdiction "is governed by the well-pleaded complaint rule, ' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar, 482 U.S. at 392. Therefore, the complaint must establish "either that  federal law creates the cause of action or that  the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage Leasehold & Easement, 524 F.3d 1090, 1100 (9th Cir. 2008) (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983)).
Although Defendants argue the plaintiff raised a federal cause of action in the complaint, the only cause of action is for unlawful detainer. ( See Doc. 1 at 9.) Significantly, an unlawful detainer action does not arise under federal law, but arises instead under state law. See Fannie Mae v. Suarez, 2011U.S. Dist. LEXIS 82300, at *6 (E.D. Cal. July 27, 2011) ("Unlawful detainer actions are strictly within the province of state court"); Deutsche Bank Nat'l Trust Co v. Leonardo, 2011 U.S. Dist. LEXIS 83854, at *2 (C.D. Cal. Aug. 1, 2011) ("the complaint only asserts a claim for unlawful detainer, a cause of action that is purely a matter of state law"). Thus, because the only claim appearing on the face of the complaint is unlawful detainer, the plaintiff has not raised a claim that invokes federal subject matter jurisdiction.
In addition, Defendants seek to invoke federal jurisdiction because they claim the plaintiff violated the Protecting Tenants at Foreclosure Act of 2009 by giving insufficient notice prior to filing the eviction proceeding. (Doc. 1 at 2-3). However, claims arising under the Protecting Tenants at Foreclosure Act are "best characterized as defenses or potential counterclaims; neither of which are considered in evaluating whether a federal question appears on the face of a plaintiff's complaint. First Northern Bank of Dixon v. Hatanaka, 2011 U.S. Dist. LEXIS 145066, at *11-12 (E.D. Cal. Dec.16, 2011) (citing Vaden v. Discover Bank, 556 U.S. 49, 59 (2009)). Moreover, "federal district courts have held that the Protecting Tenants at Foreclosure Act does not create a federal private right of action." Aurora Loan Servs., LLC v. Montoya, 2011 U.S. Dist. LEXIS 129905, at *7, n. 3 (E.D. Cal., Nov. 9, 2011). Accordingly, the Court does not have jurisdiction over the action based upon Defendants' claim that the plaintiff violated the Protecting Tenants at Foreclosure Act.
Because there is no federal question appearing in the complaint, the Court cannot exercise jurisdiction over this action and the matter must be remanded to the state court. See 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district ...