Idean, Inc. et al v. Ross

Filing 4

SUA SPONTE REMEND ORDER signed by District Judge Garland E. Burrell, Jr. on 11/22/2017 REMANDING CASE to Superior Court of California for the County of Sacramento. Certified copy of remand order sent to other court. CASE CLOSED (Reader, L)

1
2
3
4

UNITED STATES DISTRICT COURT

5

EASTERN DISTRICT OF CALIFORNIA

6
7

No. 2:17-cv-02397-GEB-DB

8

IDEAN, INC. and LEGACY
MORTGAGE AND REAL ESTATE
INC.,

9

Plaintiffs,

SUA SPONTE REMAND ORDER*

10
11
12

v.
ADRIAN LAMONT ROSS, and DOES
1-5, INCLUSIVE,
Defendants.

13
14
15
16
17
18
19
20
21

Defendant

24
25

Lamont

Ross

removes

this

unlawful

detainer action from the Superior Court of California for the
County of Sacramento asserting that the removal is appropriate
under 28 U.S.C. §§ 1331, 1332.
No. 1.

Notice of Removal (“NOR”), ECF

Defendant also characterizes his removal petition as a

complaint; however, it is evident that what he characterizes as a
complaint is a counterclaim, which is not an adequate basis for
removal.

22
23

Adrian

“There
jurisdiction,’

is
and

a
the

‘strong
removing

presumption
party

establishing that removal is proper.”

has

against
the

removal

burden

of

Lindley Contours, LLC v.

AABB Fitness Holdings, Inc., 414 F. App’x 62, 64 (9th Cir. 2011)

26
27
28

*

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

1

1

(quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).

2

“If

3

district court lacks subject matter jurisdiction, the case shall

4

be remanded.”

5

- remand an action sua sponte if it determines that it lacks

6

subject matter jurisdiction.”

7

08985 MMM (FFMx), 2012 WL 5830079, at *2 (C.D. Cal. Nov. 15,

8

2012) (citing Kelton Arms Condo. Owners Ass’n v. Homestead Ins.

9

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

at

any

10

time

before

final

judgment

28 U.S.C. § 1447(c).

it

appears

that

the

“The court may - indeed must

GFD, LLC v. Carter, No. CV 12-

Defendant asserts in the Notice of Removal that both

11

federal question and diversity removal jurisdiction exist.

NOR

12

2:15; 6:10–11.

13

federal question jurisdiction.

14

plaintiffs

15

California law, and “[a]s a general rule, . . . a case will not

16

be removable if the complaint does not affirmatively allege a

17

federal claim.”

18

(2003).

19

may not be removed to federal court on the basis of a federal

20

defense

21

plaintiff’s complaint . . . .’”

22

Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 947 (9th Cir.

23

2014) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 393

24

(1987)).

25

rest

26

Discover Bank, 556 U.S. 49, 50 (2009); Bank of New York Mellon v.

27

Flores, 2:12–cv–00435, 2012 WL 1981329, at *4 (E.D. Cal. June 1,

28

2012)(“An anticipated defense or counterclaim cannot establish a

However, Defendant has not shown the existence of

allege

a

single

Review of the complaint reveals

claim

for

unlawful

detainer

under

Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6

Under the “well-pleaded complaint rule[,] . . . ‘a case

.

upon

.

.

even

Similarly,
an

actual

if

the

“federal
or

defense

is

anticipated

in

the

Retail Prop. Trust v. United

[question]

anticipated

2

jurisdiction

counterclaim.”

[cannot]
Vaden

v.

1

federal question because such a defense or counterclaim does not

2

appear on the face of the complaint.”).

3

attempted to create federal question subject matter jurisdiction

4

by adding defenses and claims under RESPA to his petition for

5

removal and characterizing what he added as his complaint for his

6

claims, his obvious counterclaims do not confer the federal court

7

with

8

Martinez, 2010 WL 1266887, at *1 (N.D.Cal. Mar.29, 2010)(stating

9

“allegations

removal

jurisdiction.

in

10

complaint

cannot

11

[a]

Cf.,

removal

provide

Aurora

notice

this

Although Defendant has

court

or

Loan

[an]

with

Servs.,

answer

federal

LLC

to

v.

the

question

jurisdiction.”).

12

Further, Defendant has not shown satisfaction of the

13

diversity of citizenship requirement for removal jurisdiction to

14

exist 28 U.S.C. § 1332.

15

Therefore, this case is remanded to the Superior Court

16

of California for the County of Sacramento.

17

Dated:

November 22, 2017

18
19
20
21
22
23
24
25
26
27
28
3