Ethan Investment LLC et al v. Manzano

Filing 5

ORDER TO SHOW CAUSE. Show Cause Response due by 9/9/2010.Signed by Judge Lucy H. Koh on 08/26/2010. (Attachments: # 1 Certificate of Mailing)(lhklc2, COURT STAFF) (Filed on 8/26/2010)

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Ethan Investment LLC et al v. Manzano Doc. 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ETHAN INVESTMENT, LLC and TRUSTWAY INVESTMENTS, LLC ) ) ) Plaintiffs, ) v. ) ) LOUELLA D. MANZANO; and DOES 1 to 20, ) inclusive ) Defendant. ) ) **E-Filed 08/26/2010** Case No.: 10-CV-02527-LHK ORDER TO SHOW CAUSE Defendant Louella D. Manzano removed this action for unlawful detainer from the Superior Court of Santa Clara County on June 8, 2010. However, it appears that the Court lacks subject matter jurisdiction over the removed action. Although Plaintiff has not moved to remand, this Court has a continuing obligation to raise issues of subject matter jurisdiction whenever it appears that jurisdiction may be lacking. Fed. R. Civ. Pro. 12(h)(3); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). If a court lacks subject matter jurisdiction over a removed action, that action must be remanded. 28 U.S.C. 1447(c). Defendant bears the burden of establishing that removal is proper. Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). In the notice of removal, Defendant asserts that grounds for removal exist because their principal claim for relief arises under federal law. However, a defendant may remove a case to 1 Case No.: 10-CV-02527-LHK ORDER TO SHOW CAUSE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 federal court only if "the plaintiff's complaint establishes that the case `arises under' federal law." Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 10 (1983). It is wellsettled that a case may not be removed to federal court on the basis of a federal defense. Id. at 14. Rather, "the federal question must `be disclosed upon the face of the complaint, unaided by the answer.'" Provincial Gov't of Marinduque, 582 F.3d at 1086 (quoting Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 127-28 (1974)). Because Plaintiff's complaint for unlawful detainer raises no federal claims, there appears to be no basis for removal and no subject matter jurisdiction in this Court. IT IS HEREBY ORDERED that Defendant shall show cause why this action should not be remanded to state court. Defendant shall file a written response not to exceed 5 pages no later than 2 p.m. on September 6, 2010. Plaintiffs may also file a submission addressing the issues, not to exceed 5 pages, by the same date. IT IS SO ORDERED. Dated: August 26, 2010 _________________________________ LUCY H. KOH United States District Judge 2 Case No.: 10-CV-02527-LHK ORDER TO SHOW CAUSE

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