Aurora Loan Services, LLC v. Gullatt

Filing 3

ORDER REMANDING Action to State Court; ORDER DENYING 2 Motion to Proceed IFP signed by Chief Judge Anthony W. Ishii on 6/24/2010. (Sant Agata, S)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 AURORA LOAN SERVICES, LLC., 9 10 Plaintiff, 11 v. 12 BERT GULLATT, 13 14 Defendant. 15 16 Defendant Bert Gullatt ("Defendant"), proceeding pro se, removed this action from the 17 Stanislaus County Superior Court on June 18, 2010. He also filed an application to proceed in 18 forma pauperis. 19 DISCUSSION 20 Here, Defendant has attempted to remove an action based wholly on state law. The 21 underlying complaint is an unlawful detainer action filed by Plaintiffs Aurora Loan Services, 22 LLC., on May 14, 2010, in Stanislaus County Superior Court. 23 Removal to federal court is proper where the federal court would have original 24 subject-matter jurisdiction over the complaint. 28 U.S.C. § 1441. If after a court's prompt 25 review of a notice of removal "it clearly appears on the face of the notice and any exhibits 26 annexed thereto that removal should not be permitted, the court shall make an order for summary 27 remand." 28 U.S.C. § 1446(c)(4) (emphasis added). These removal statutes are strictly 28 1 ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1:10cv01108 AWI DLB ORDER REMANDING ACTION TO STATE COURT ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS (Document 2)

UNITED STATES DISTRICT COURT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

construed against removal and place the burden on the petitioner to demonstrate that removal was proper. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir.2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992)). Federal courts have original jurisdiction over civil actions "rising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A claim "arises under" federal law if, based on the "well-pleaded complaint rule," the plaintiff alleges a federal cause of action. Vaden v. Discovery Bank, 129 S.Ct. 1262, 1272 (2009). Defenses and counterclaims asserting a federal question do not satisfy this requirement. Id. at 1273. Defendant has failed to demonstrate that the action arises under federal law. An unlawful detainer action arises under state law and does not involve any federal claims. Although Defendant contends in his notice of removal that this action should be removed based on another action he filed here that allegedly raises a federal question,1 he is incorrect. Removal must be based on the underlying complaint, which here raises only an issue of state law. Defendant has therefore failed to show that removal is proper and this Court lacks subject matter jurisdiction. ORDER The Court ORDERS that this action be REMANDED to Stanislaus County Superior Court. The Court further ORDERS that Defendant's application to proceed in forma pauperis is DENIED AS MOOT.

IT IS SO ORDERED. Dated: 0m8i78 June 24, 2010 CHIEF UNITED STATES DISTRICT JUDGE

Plaintiff references 1:10cv1109 AW I SKO, an action he filed here based on the "Protecting Tenants at F o r e c lo s u r e Act of 2009." It is questionable whether that statute provides a private right of action, though this order d o e s not address that issue.

1

2