Aurora Properties, LLC v. Andrade et al

Filing 3

ORDER That Case Be Reassigned to a District Judge; REPORT AND RECOMMENDATIONS re 1 Notice of Removal, filed by Marcella Andrade. Objections due by 8/2/2012. Signed by Magistrate Judge Howard R. Lloyd on 7/16/2012. (hrllc2, COURT STAFF) (Filed on 7/16/2012)

Download PDF
1 2 *E-FILED: July 16, 2012* 3 4 5 6 NOT FOR CITATION 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 For the Northern District of California United States District Court 7 No. C12-03594 HRL AURORA PROPERTIES, LLC, 12 ORDER THAT CASE BE REASSIGNED TO A DISTRICT JUDGE Plaintiff, v. 13 14 15 REPORT AND RECOMMENDATION RE REMAND TO STATE COURT MARCELLA ANDRADE and DOES 1-5, inclusive, Defendants. / 16 17 Defendant Marcella Andrade removed this unlawful detainer action from the Santa 18 Clara County Superior Court. For the reasons stated below, the undersigned recommends that 19 this matter be remanded. 20 Removal to federal court is proper where the federal court would have original subject 21 matter jurisdiction over the complaint. 28 U.S.C. § 1441. The removal statutes are strictly 22 construed against removal and place the burden on the defendant to demonstrate that removal 23 was proper. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) 24 (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). Additionally, the court has a 25 continuing duty to determine whether it has subject matter jurisdiction. FED. R. CIV. P. 12(h). 26 A case must be remanded to the state court if it appears at any time before final judgment that 27 the court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). 28 Andrade fails to show that removal is proper based on any federal law. Federal courts 1 have original jurisdiction over civil actions “arising under the Constitution, laws, or treaties of 2 the United States.” 28 U.S.C. § 1331. A claim “arises under” federal law if, based on the 3 “well-pleaded complaint rule,” the plaintiff alleges a federal claim for relief. Vaden v. 4 Discovery Bank, 129 S. Ct. 1262, 1272 (2009). Defenses and counterclaims asserting a federal 5 question do not satisfy this requirement. Id. Andrade contends that plaintiff violated federal 6 law by serving a defective notice to quit. Plaintiff’s complaint, however, presents claims arising 7 only under state law. It does not allege any federal claims whatsoever. Allegations in a 8 removal notice or in a response to the complaint cannot provide this court with federal question 9 jurisdiction. Andrade does not assert diversity jurisdiction under 28 U.S.C. § 1332, and there does 11 For the Northern District of California United States District Court 10 not appear to be any basis for it in any event. The complaint indicates that the amount 12 demanded does not exceed $10,000. Moreover, as a California defendant, Andrade cannot 13 remove an action on the basis of diversity. 28 U.S.C. § 1441(b)(2) (an action may not be 14 removed “if any of the parties in interest properly joined and served as defendants is a citizen of 15 the State in which such action is brought.”); see also Spencer v. U.S. Dist. Ct., 393 F.3d 867, 16 870 (9th Cir. 2004) (“It is thus clear that the presence of a local defendant at the time removal is 17 sought bars removal.”). 18 Because the parties have yet to consent to the undersigned’s jurisdiction, this court 19 ORDERS the Clerk of the Court to reassign this case to a District Judge. The undersigned 20 further RECOMMENDS that the newly assigned judge remand the case to the Santa Clara 21 County Superior Court. Any party may serve and file objections to this Report and 22 Recommendation within fourteen days after being served. FED. R. CIV. P. 72. 23 24 SO ORDERED. Dated: July 16, 2012 25 HOWARD R. LLOYD 26 UNITED STATES MAGISTRATE JUDGE 27 28 2 1 5:12-cv-03594-HRL Notice has been electronically mailed to: 2 Daniel Thomas Paris parislaw1@msn.com 3 4 5:12-cv-03594-HRL Notice sent by U.S. Mail to: 5 Marcella Andrade 2498 Amaryl Drive San Jose, CA 95132 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?