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)

*E-Filed 9/16/11*

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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For the Northern District of California

United States District Court

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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

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Plaintiff,
v.
MARIO MARGO,
Defendant.
____________________________________/
This case was removed from Alameda Superior Court where it was pending as an unlawful

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detainer action against pro se defendant Mario Margo. On August 4, 2010, Plaintiff Wells Fargo

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filed a First Amended post foreclosure unlawful detainer claim against Margo. Under 28 U.S.C. §

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1446(c)(4), when a notice of removal is filed, the court is directed to examine it “promptly” and,

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“[i]f it clearly appears on the face of the notice and any exhibits annexed thereto that removal should

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not be permitted, the court shall make an order for summary remand.” In this case, summary

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remand is appropriate.

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Margo removed this action pursuant to 28 U.S.C. § 1331 alleging that this action arises

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under federal law. The existence of federal question jurisdiction is governed by the “well-pleaded

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complaint rule.” Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826, 830

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(2002). The rule applies equally to evaluating the existence of federal questions in cases brought

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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

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presented by what is or should have been alleged in the complaint. Id. at 830. Thus, the fact that a

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federal question may be implicated through matters raised by demurrer, answer, or counterclaim is

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insufficient.

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According to Margo, the plaintiff violated a number of provisions in the Helping Families

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Save Their Homes Act of 2009 by not providing him with 90 day notice to quit. See Public Law

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111-22. It is unclear whether this federal law is relevant to his defense or potential counterclaim. In

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either case, the purported federal question is not raised in plaintiff’s complaint and therefore does

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not give rise to removal jurisdiction.

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pending motion to remand is denied as moot.

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For the Northern District of California

United States District Court

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Accordingly, this action is hereby remanded to the Alameda Superior Court. Plaintiff’s

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IT IS SO ORDERED.

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Dated: 9/15/11
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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NO. C 11-03935 RS
ORDER OF SUMMARY REMAND

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