Wells Fargo Bank, N.A. v. Olmedo et al

Filing 11

ORDER REMANDING CASE. Signed by Judge Richard Seeborg on 9/15/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 9/16/2011)

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*E-Filed 9/16/11* 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 SAN FRANCISCO DIVISION 9 11 For the Northern District of California United States District Court 10 WELLS FARGO BANK, N.A, TRUSTEE FOR CARRINGTON MORTGAGE LOAN TRUST, its successors and/or assigns. No. C 11-03935 RS ORDER OF SUMMARY REMAND 12 13 14 15 16 17 Plaintiff, v. MARIO MARGO, Defendant. ____________________________________/ This case was removed from Alameda Superior Court where it was pending as an unlawful 18 detainer action against pro se defendant Mario Margo. On August 4, 2010, Plaintiff Wells Fargo 19 filed a First Amended post foreclosure unlawful detainer claim against Margo. Under 28 U.S.C. § 20 1446(c)(4), when a notice of removal is filed, the court is directed to examine it “promptly” and, 21 “[i]f it clearly appears on the face of the notice and any exhibits annexed thereto that removal should 22 not be permitted, the court shall make an order for summary remand.” In this case, summary 23 remand is appropriate. 24 Margo removed this action pursuant to 28 U.S.C. § 1331 alleging that this action arises 25 under federal law. The existence of federal question jurisdiction is governed by the “well-pleaded 26 complaint rule.” Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826, 830 27 (2002). The rule applies equally to evaluating the existence of federal questions in cases brought 28 initially in this Court and in removed cases. Id. at n. 2. Under that rule, a federal question must be NO. C 11-03935 RS ORDER OF SUMMARY REMAND 1 presented by what is or should have been alleged in the complaint. Id. at 830. Thus, the fact that a 2 federal question may be implicated through matters raised by demurrer, answer, or counterclaim is 3 insufficient. 4 According to Margo, the plaintiff violated a number of provisions in the Helping Families 5 Save Their Homes Act of 2009 by not providing him with 90 day notice to quit. See Public Law 6 111-22. It is unclear whether this federal law is relevant to his defense or potential counterclaim. In 7 either case, the purported federal question is not raised in plaintiff’s complaint and therefore does 8 not give rise to removal jurisdiction. 9 pending motion to remand is denied as moot. 11 For the Northern District of California United States District Court 10 Accordingly, this action is hereby remanded to the Alameda Superior Court. Plaintiff’s 12 IT IS SO ORDERED. 13 14 15 Dated: 9/15/11 RICHARD SEEBORG UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 NO. C 11-03935 RS ORDER OF SUMMARY REMAND 2

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