Idean, Inc. et al v. Ross
Filing
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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)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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No. 2:17-cv-02397-GEB-DB
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IDEAN, INC. and LEGACY
MORTGAGE AND REAL ESTATE
INC.,
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Plaintiffs,
SUA SPONTE REMAND ORDER*
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v.
ADRIAN LAMONT ROSS, and DOES
1-5, INCLUSIVE,
Defendants.
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Defendant
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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.
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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)
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*
The undersigned judge revokes any actual or anticipated referral to a
Magistrate Judge for the purposes of Findings and Recommendations in this
case.
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(quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).
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“If
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district court lacks subject matter jurisdiction, the case shall
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be remanded.”
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- remand an action sua sponte if it determines that it lacks
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subject matter jurisdiction.”
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08985 MMM (FFMx), 2012 WL 5830079, at *2 (C.D. Cal. Nov. 15,
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2012) (citing Kelton Arms Condo. Owners Ass’n v. Homestead Ins.
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Co., 346 F.3d 1190, 1192 (9th Cir. 2003)).
at
any
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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
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federal question and diversity removal jurisdiction exist.
NOR
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2:15; 6:10–11.
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federal question jurisdiction.
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plaintiffs
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California law, and “[a]s a general rule, . . . a case will not
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be removable if the complaint does not affirmatively allege a
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federal claim.”
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(2003).
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may not be removed to federal court on the basis of a federal
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defense
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plaintiff’s complaint . . . .’”
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Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 947 (9th Cir.
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2014) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 393
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(1987)).
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rest
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Discover Bank, 556 U.S. 49, 50 (2009); Bank of New York Mellon v.
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Flores, 2:12–cv–00435, 2012 WL 1981329, at *4 (E.D. Cal. June 1,
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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
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jurisdiction
counterclaim.”
[cannot]
Vaden
v.
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federal question because such a defense or counterclaim does not
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appear on the face of the complaint.”).
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attempted to create federal question subject matter jurisdiction
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by adding defenses and claims under RESPA to his petition for
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removal and characterizing what he added as his complaint for his
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claims, his obvious counterclaims do not confer the federal court
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with
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Martinez, 2010 WL 1266887, at *1 (N.D.Cal. Mar.29, 2010)(stating
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“allegations
removal
jurisdiction.
in
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complaint
cannot
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[a]
Cf.,
removal
provide
Aurora
notice
this
Although Defendant has
court
or
Loan
[an]
with
Servs.,
answer
federal
LLC
to
v.
the
question
jurisdiction.”).
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Further, Defendant has not shown satisfaction of the
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diversity of citizenship requirement for removal jurisdiction to
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exist 28 U.S.C. § 1332.
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Therefore, this case is remanded to the Superior Court
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of California for the County of Sacramento.
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Dated:
November 22, 2017
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