Equity Growth Asset Management Corporation v. Soper

Filing 10

ORDER GRANTING PLAINTIFFS 8 MOTION TO REMAND AND DENYING 9 PLAINTIFFS MOTION TO SHORTEN TIME AS MOOT. Signed by Judge Claudia Wilken on 12/27/2011. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 12/27/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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EQUITY GROWTH ASSET MANAGEMENT, a
California Corporation,

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v.
MARC JON SOPER; and DOES 1-10,
Defendants.

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United States District Court
For the Northern District of California

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ORDER GRANTING
PLAINTIFF’S MOTION
TO REMAND AND
DENYING
PLAINTIFF’S MOTION
TO SHORTEN TIME AS
MOOT
(Docket Nos. 8 and
9)

Plaintiff,

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No. C 11-5571 CW

________________________________/

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Plaintiff Equity Growth Asset Management moves to remand this
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case to San Mateo Superior Court.

Defendant Marc Jon Soper has

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failed to respond to Plaintiff’s motion to remand within the
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fourteen-day deadline.

See Civil Local Rule 7-3(a).

The Court

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takes the motion under submission on the papers.

For the reasons

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set forth below, the Court GRANTS Plaintiff’s motion.
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BACKGROUND
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Plaintiff filed this action on August 26, 2011 in San Mateo
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Superior Court, asserting a claim for unlawful detainer against
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Defendant Marc Jon Soper.

Notice of Removal, Ex. A.

Defendant

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was served with the complaint on September 6, 2011.

Vratari Decl.

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¶ 6; Notice of Removal, Ex. B, at 4.

Defendant filed a demurrer

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on September 12, 2011, which the state court overruled.

Notice of

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Removal ¶ 9, Ex. B.
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Defendant removed this action to federal court on November
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16, 2011.

In his Notice of Removal, Defendant states that this

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Court has subject matter jurisdiction, because his demurrer
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alleged that Plaintiff violated the federal Protecting Tenants at

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Foreclosure Act of 2009.

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LEGAL STANDARD

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A defendant may remove a civil action filed in state court to

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federal district court so long as the district court could have

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exercised original jurisdiction over the matter.

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§ 1441(a).

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time before judgment, it appears that the district court lacks

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subject matter jurisdiction over a case previously removed from

28 U.S.C.

Title 28 U.S.C. § 1447(c) provides that if, at any

United States District Court
For the Northern District of California

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state court, the case must be remanded.

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the scope of the removal statute must be strictly construed.

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v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

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presumption’ against removal jurisdiction means that the defendant

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always has the burden of establishing that removal is proper.”

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Id.

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remanding the case to state court.

Gaus

“The ‘strong

Courts should resolve doubts as to removability in favor of

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On a motion to remand,

Id.

DISCUSSION
It is well-established “that a suit ‘arises under’ federal

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law ‘only when the plaintiff's statement of his own cause of

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action shows that it is based upon [federal law].’”

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Discover Bank, 129 S. Ct. 1262, 1272 (2009) (quoting Louisville &

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Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908)) (formatting

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in original).

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or anticipated defense or counterclaim.”

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Housing Mgmt., Inc. v. Muhammad, 2007 WL 4219397, at *2-3 (N.D.

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Cal.) (finding no federal question jurisdiction where plaintiff’s

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unlawful detainer complaint presented no federal question and

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defendant sought to assert section 1983 counterclaims).

Vaden v.

Federal jurisdiction may not rest upon “an actual

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Id.;

see also, Eden

In the

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instant case, Plaintiff’s complaint alleges only unlawful detainer

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pursuant to California Code of Civil Procedure § 1161a.

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cannot be based solely on allegations that Defendant raises in his

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defense.

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Removal

Further, federal law requires that a notice of removal “be

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filed within 30 days after the receipt by the defendant, through

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service or otherwise, of a copy of the initial pleading setting

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forth the claim for relief upon which such action or proceeding is

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based.”

28 U.S.C. § 1446(b).

Defendant was served with the

United States District Court
For the Northern District of California

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complaint on September 6, 2011 and did not file a notice of

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removal until November 16, 2011, more than two months later.

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Accordingly, Defendant has waived “the right to remove by failing

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to file a notice of removal within the 30-day time limit.”

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Inv. Props. LLC v. Sosa, 2011 U.S. Dist. LEXIS 54524, at *10 (C.D.

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Cal.) (citing Goldberg v. CPC Int'l, Inc., 495 F. Supp. 233, 236-

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37 (N.D. Cal. 1980)).

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BDA

CONCLUSION
For the foregoing reasons, Plaintiff’s motion to remand is

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GRANTED (Docket No. 8).

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hear its motion to remand is DENIED as moot (Docket No. 9).

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Plaintiff’s motion to shorten time to

The Clerk shall remand this action to San Mateo Superior
Court and close the file.
IT IS SO ORDERED.

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Dated: 12/27/2011

CLAUDIA WILKEN
United States District Judge

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