Shih v. Anderson

Filing 3

SUA SPONTE REMAND ORDER signed by District Judge Garland E. Burrell, Jr. on 10/19/2016 ORDERING the case REMANDED back to the Superior Court of California, for the County of San Joaquin. Certified Copy of remand order sent to other court. CASE CLOSED. (Jackson, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WU HUNG TONY SHIH,

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Plaintiff,

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No. 2:16-cv-02485-GEB-EFB

SUA SPONTE REMAND ORDER*

v.
WILLIE L ANDERSON, JR.,

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Defendant.

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On

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18,

2016,

Defendant

filed

a

Notice

of

Removal removing this unlawful detainer action from the Superior
Court of California for San Joaquin County. (Notice of Removal
(“NOR”), ECF No. 1.) For the following reasons, the Court sua
sponte remands this case to the Superior Court of California for
San Joaquin County for lack of subject matter jurisdiction.

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October

“There
jurisdiction,’

is
and

a
the

‘strong

presumption

removing

party

has

against
the

removal

burden

of

establishing that removal is proper.” Lindley Contours, LLC v.
AABB Fitness Holdings, Inc., 414 F. App’x 62, 64 (9th Cir. 2011)
(quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).
“If

at

any

time

before

final

judgment

it

appears

that

the

district court lacks subject matter jurisdiction, the case shall
be remanded.” 28 U.S.C. § 1447(c). “The court may - indeed must -

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*

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The undersigned judge revokes any actual or anticipated referral of this
matter to a Magistrate Judge for the purposes of Findings and Recommendations.

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remand

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subject matter jurisdiction.” GFD, LLC v. Carter, No. CV 12-08985

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MMM (FFMx), 2012 WL 5830079, at *2 (C.D. Cal. Nov. 15, 2012)

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(citing Kelton Arms Condo. Owners Ass’n v. Homestead Ins. Co.,

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346 F.3d 1190, 1192 (9th Cir. 2003)).

an

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action

sua

sponte

if

it

determines

that

it

lacks

Defendant alleges in the Notice of Removal that federal

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question

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Specifically, Defendant contends that the “‘Protecting Tenants at

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Foreclosure Act 2009,’ 12 U.S.C. [§] 5220,” governs this case,

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(NOR ¶ 6), because “in order to evict a bona fide residential

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tenant of a foreclosed Landlord, Plaintiff was required to state

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a cause of action under the [Act].” (NOR ¶ 7.)

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jurisdiction

However,

justifies

review

of

the

removal.

Complaint

(NOR

¶¶ 5–6.)

reveals

Plaintiff

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alleges “one [claim] . . . for unlawful detainer under state law,

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and under the well-pleaded complaint rule, a defendant’s claims

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or defenses may not serve as a basis for removal.” Polymatic

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Props.,

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5932618, at *1 (E.D. Cal. Nov. 27, 2012) (citing Takeda v. Nw.

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Nat’l Life Ins. Co., 765 F.2d 815, 822 (9th Cir. 1985); see also

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Deutsche Bank Nat’l Trust Co. v. Ghosal, No. 14cv2582-GPC(WVG),

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2014

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unlawful detainer action sua sponte). Therefore, Defendant has

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not shown the existence of federal question removal jurisdiction.

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/ / /

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/ / /

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/ / /

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/ / /

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/ / /

WL

Inc.

v.

5587199,

Mack,

at

*2

No.

2:12-cv-2848-LKK-EFB

(S.D.

Cal.

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Nov.

3,

PS,

2014)

2012

WL

(remanding

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For the stated reasons, this case is remanded to the

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Superior Court of California for San Joaquin County.

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Dated:

October 19, 2016

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