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NOT FOR CITATION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