Abitsch & Abitsch, LLC v. Wanigatunga et al

Filing 7

ORDER Regarding Application 6 for TRO and Remanding Action to State Court. Signed by Judge Edward M. Chen on 7/31/2012. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 7/31/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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No. C 12-3684 WHA

ABITSCH & ABITSCH, LLC,
Plaintiff,

ORDER REGARDING APPLICATION
FOR TRO AND REMANDING ACTION
TO STATE COURT

v.
DARUKA WANIGATUNGA, et al.,
Defendants.
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Defendant Daruka Wanigatunga seeks a stay and temporary restraining order enjoining a

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writ of execution issued by San Francisco Superior Court. Because this Court does not have

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subject-matter jurisdiction it lacks the power to grant such relief.

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The underlying action is an unlawful detainer action brought by plaintiff Abitsch &

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Abitsch LLC, in the Superior Court of California, County of San Francisco. The burden of

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establishing federal jurisdiction is on the party seeking removal. Gaus v. Miles, Inc., 980 F.2d

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564, 566–67 (1992). Defendant removed this action on July 13, 2012, based on federal-question

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jurisdiction. An unlawful detainer action does not present a federal question. Along with the

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notice of removal, defendant pled a counterclaim alleging that plaintiff violated the Racketeer

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Influenced and Corrupt Organizations Act and the Federal Debt Collection Practices Act. A

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counterclaim that presents a federal question does not create a basis for removal. See Takeda v.

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Nw. Nat. Life Ins. Co., 765 F.2d 815, 821–22 (9th Cir. 1985) (removal is only proper “if the

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federal question appears on the face of the plaintiff’s well-pleaded complaint”). Defendant does

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not assert diversity jurisdiction. To sum up, defendant has not met his burden of establishing

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subject-matter jurisdiction, and this order finds no basis for subject-matter jurisdiction.

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Accordingly, this Court is without power to adjudicate defendant’s application for a

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temporary restraining order. For the foregoing reasons, this action is REMANDED to the Superior

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Court of San Francisco County.

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IT IS SO ORDERED.

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Dated: July 31, 2012

EDWARD M. CHEN
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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