Abitsch & Abitsch, LLC v. Wanigatunga

Filing 10

ORDER REMANDING CASE.. Signed by Judge Samuel Conti on 1/25/2012. (sclc1, COURT STAFF) (Filed on 1/25/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ABITSCH & ABITSCH, LLC,

) Case No. 11-5319 SC
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) ORDER REMANDING CASE
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Plaintiff,

United States District Court

For the Northern District of California

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v.

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DARUKA WANIGATUNGA,

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Defendant.

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Plaintiff Abitsch & Abitsch ("Plaintiff") filed this unlawful

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detainer action in the Superior Court of the State of California,

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City and County of San Francisco on August 9, 2010.

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("Nov. 2, 2011 Not. of Removal").

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("Defendant") has removed this case to federal court twice.

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case was first removed on September 30, 2011, but was remanded back

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to state court one week later by Chief Magistrate Judge James.

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Case No. 11-4833 ECF Nos. 1 ("Sept. 30, 2011 Not. of Removal"), 11

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("Oct. 7, 2011 Remand Order").

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second time on November 2, 2011, a few days prior to the trial date

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set by the state court.

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case is before this Court.

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ECF. No. 1

Defendant Daruka Wanigatunga
The

Defendant removed the case for a

Nov. 2, 2011 Not. Of Removal.

Now the

"If the court determines at any time that it lacks subject-

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matter jurisdiction, the court must dismiss the action."

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Civ. P. 12(h)(3). "[A] court may raise the question of subject

Fed. R.

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matter jurisdiction, sua sponte, at any time during the pendency of

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the action[.]"

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Cir. 2002).

Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th

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Having reviewed the most recent Notice of Removal, the Court

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finds that Defendant has failed to establish that federal subject

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matter jurisdiction exists.

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the action included the same grounds as those asserted here:

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Defendant intended to file a counter-complaint against Plaintiff

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based on the Federal Debt Collection Practices Act ("FDCPA").

The grounds for the first removal of

United States District Court

For the Northern District of California

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Compare Sept. 30, 2011 Not. Removal at 2 with Nov. 2, 2011 Not. of

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Removal at 2.

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October 7, 2011 Remand Order, and the Court sees no reason why it

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should reach a different conclusion here.

Judge James rejected Defendant's position in her

Accordingly, this action is hereby REMANDED to the Superior

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Court of the State of California, City and County of San

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Francisco.1

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IT IS SO ORDERED.

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Dated:

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January 25, 2012

_____________________________
UNITED STATES DISTRICT JUDGE

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The Court also VACATES its January 24, 2012 Order shortening time
to hear Plaintiff's motion to remand (ECF No. 9).

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