Gross Mortgage Corporation v. Al-Smansur

Filing 27

ORDER GRANTING MOTION TO REMAND FOR LACK OF JURISDICTION; REMANDING CASE., ***Civil Case Terminated. Signed by Judge Yvonne Gonzalez Rogers on 4/24/12. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 4/24/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GROSS MORTGAGE CORPORATION,

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Plaintiff,

Case No.: 12-cv-01102-YGR
ORDER GRANTING MOTION TO REMAND FOR
LACK OF JURISDICTION

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Northern District of California

United States District Court

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vs.
SABIR JAMIL AL-MANSUR,
Defendant.

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Defendant Sabir Jamil Al-Mansur removed this unlawful detainer case from the Superior
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Court of California, County of Alameda. (Dkt. No. 1.) Defendant asserted in his Notice of Removal
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that “[t]he complaint presents federal questions” and that Defendant’s Answer and Counterclaim, filed
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on the same day as the Notice of Removal, alleged, among other things, “illegal eviction and a
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defective notice, i.e. the Notice to Occupants to Vacate Premises, failed to comply with The
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Protecting Tenants at Foreclosure Act [12 U.S.C §5220].” Id. at ECF pp. 3–4. Defendant also asserts
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that he has raised federal questions “pursuant to Civil Code § 1788 (e) and (f), and the Federal Fair
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Debt Collection Act, 15 U.S.C., Title 41, Subchap. V, §§ 1692 et seq, and the Real Estate Settlement
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Procedures Act (RESPA, 12 U.S.C. §§ 2601-2617 [sic].” Id. at ECF p. 4. Further, Defendant asserts
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that diversity jurisdiction exists because he is a citizen of California and “Plaintiffs are citizens of
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Florida and Minnesota.” Id.
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Plaintiff Gross Mortgage Corporation has filed a Motion to Remand for Lack of Jurisdiction.
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(Dkt. No. 19.) For the reasons stated below, Plaintiff’s Motion to Remand is GRANTED.
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Removal to federal court is proper where the federal court would have original subject matter

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jurisdiction over the complaint. 28 U.S.C. § 1441. These removal statutes are strictly construed

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against removal and place the burden on the defendant to demonstrate that removal was proper.

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Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus v. Miles,

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

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Defendant has failed to show that removal is proper based on any federal substantive law. In

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his Notice of Removal and Counterclaim, Defendant asserts that Plaintiff has violated federal laws in

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pursuing the unlawful detainer action. Federal courts have original jurisdiction over civil actions

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“arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A claim

Northern District of California

“arises under” federal law if, based on the “well-pleaded complaint rule,” the plaintiff alleges a

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United States District Court

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federal claim for relief. Vaden v. Discover Bank, 129 S. Ct. 1262, 1272 (2009). Defenses and

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counterclaims asserting a federal question do not satisfy this requirement. Id. Indeed, the federal

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question must be presented by the plaintiff’s complaint as it stands at the time of removal. The record

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indicates that Plaintiff’s state court complaint presents claims arising only under state law and does

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not allege any federal claims whatsoever. (Dkt. No. 1 at ECF pp. 6–11.) Defendant’s allegations in a

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removal notice, counterclaim, or otherwise in response to Plaintiff’s complaint cannot provide this

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Court with federal question jurisdiction.

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Moreover, Defendant does not establish diversity jurisdiction. Plaintiff’s complaint indicates

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that the amount demanded does not exceed $10,000. As such, Defendant cannot remove this action to

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federal court based on diversity jurisdiction. 28 U.S.C. §§ 1441(b) & 1332(a).

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To the extent that Defendant asserts that Plaintiff’s Motion to Remand was untimely filed, 28

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U.S.C. section 1447(c) states that a motion to remand a case “on the basis of any defect other than

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lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of

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removal.” The pending Motion to Remand is based entirely on a lack of subject matter jurisdiction

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based on the lack of a federal question in Plaintiff’s complaint.

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For the foregoing reasons, Plaintiff’s Motion to Remand is GRANTED. Because this Court

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does not have subject matter jurisdiction over this action, it does not reach the merits on either

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Defendant’s Motion for Judgment on the Pleadings in Favor of his Counterclaims (Dkt. No. 15) or his

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Application to Proceed in Forma Pauperis (Dkt. No. 5). This Order terminates the pending motions at

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Dkt. Nos. 5, 15 & 19.

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It is hereby ORDERED that this case is remanded to the Superior Court of California, County of

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Alameda. The Clerk of this Court is further ordered to forward certified copies of this Order and all

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docket entries to the Clerk of the Superior Court of California, County of Alameda.

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IT IS SO ORDERED.

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Dated: April 24, 2012

_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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Northern District of California

United States District Court

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