Pacific Elite Fund, Inc et al v. Perez

Filing 8

ORDER REMANDING CASE. Because the court finds that it lacks subject matter jurisdiction, this case is REMANDED to Santa Cruz County Superior Court. The clerk shall close this file. Signed by Judge Edward J. Davila on 8/28/2012. (ejdlc1, COURT STAFF) (Filed on 8/28/2012)

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

SAN JOSE DIVISION
CASE NO. 5:12-cv-03805 EJD

PACIFIC ELITE FUND INC.,

11

ORDER REMANDING CASE
Plaintiff(s),

For the Northern District of California

United States District Court

10

12
13

v.
JESUS PEREZ, et. al.,

14
Defendant(s).
15

/

16

Defendants Jesus Perez and Natividad Perez (“Defendants”) removed the instant unlawful

17

detainer action from Santa Cruz County Superior Court on July 20, 2012. See Docket Item No. 1.

18

At that time, Defendants filed only a Notice of Removal and nothing more. Accordingly, the

19

magistrate judge originally assigned to this action ordered Defendants to comply with 28 U.S.C. §

20

1446(a) by filing a copy of “all process, pleadings, and orders served upon such defendant or

21

defendants in this action” no later than August 3, 2012. See Docket Item No. 5. The case was then

22

reassigned to the undersigned on August 10, 2012. See Docket Item No. 7.

23

To date, Plaintiffs have not complied with the order of the magistrate judge, and their failure

24

to do so raises the issue of subject matter jurisdiction. This term “refers to a tribunal’s power to hear

25

a case, a matter that can never be forfeited or waived.” Union Pac. R.R. v. Bhd. of Locomotive

26

Eng’rs & Trainmen Gen. Comm. of Adjustment, 130 S. Ct. 584, 596 (2009). It can be raised at any

27

time during the course of a proceeding by the parties or by the court. See Fed. R. Civ. Proc.

28

12(h)(3); see also Snell v. Cleveland, 316 F.3d 822, 826 (9th Cir. 2002).
1
CASE NO. 5:12-cv-03805 EJD
ORDER REMANDING CASE

1

Since this action was removed from state court, well established jurisdictional principles

jurisdiction is a creation of statute. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064

4

(9th Cir. 1979) (“The removal jurisdiction of the federal courts is derived entirely from the statutory

5

authorization of Congress.”). Only those state court actions that could have been originally filed in

6

federal court may be removed. 28 U.S.C. § 1441(a) (“Except as otherwise expressly provided by

7

Act of Congress, any civil action brought in a State court of which the district courts of the United

8

States have original jurisdiction, may be removed by the defendant.”); see also Caterpillar Inc. v.

9

Williams, 482 U.S. 386, 392 (1987) (“Only state-court actions that originally could have been filed

10

in federal court may be removed to federal court by defendant.”). Accordingly, the removal statute

11
For the Northern District of California

must be applied to determine whether the case is properly before the district court. Removal

3

United States District Court

2

provides two basic ways in which a state court action may be removed to federal court: (1) the case

12

presents a federal question, or (2) the case is between citizens of different states and the amount in

13

controversy exceeds $75,000. 28 U.S.C. §§ 1441(a), (b).

14

When removal is based on the presence of a federal question, the court looks to the face of a

15

well-pleaded complaint to determine whether a cause of action is created by federal law or whether

16

the plaintiff’s right to relief necessarily depends on the resolution of a substantial question of federal

17

law. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 808 (1988) (citing Franchise Tax

18

Bd. of California v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28, (1983)). “[I]t must be clear

19

from the face of the plaintiff’s well-pleaded complaint that there is a federal question.” Duncan v.

20

Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). The complaint as it existed at time of removal dictates

21

whether removal jurisdiction is proper. Libhart, 592 F.2d at 1065.

22
23
24

An anticipated or even actual federal defense or counterclaim is not sufficient to confer
jurisdiction. Constr. Laborers Vacation Trust, 463 U.S. at 10.
Here, Defendants have not provided a copy of the complaint. The court is therefore unable

25

to confirm Defendants’ representation in the Notice of the Removal that the Complaint a federal

26

question. In any event, it is unlikely that federal question jurisdiction arises from this case, which

27

appears to be purely one for unlawful detainer. See, e.g., Fed. Nat’l Mortg. Assoc. v. Lopez, No. C

28

11-00451 WHA, 2011 U.S. Dist. LEXIS 44818, at *1, 2011 WL 1465678 (N.D. Cal. Apr. 15, 2011);
2
CASE NO. 5:12-cv-03805 EJD
ORDER REMANDING CASE

1

GMAC Mortg. LLC v. Rosario, No. C 11-1894 PJH, 2011 U.S. Dist. LEXIS 53643, at *2, 2011 WL

2

1754053 (N.D. Cal. May 9, 2011); Wescom Credit Union v. Dudley, No. CV 10-8203 GAF (SSx),

3

2010 U.S. Dist. LEXIS 130517, at *2, 2010 WL 4916578 (C.D. Cal. Nov. 22, 2010).

4

Because the court finds that it lacks subject matter jurisdiction, this case is REMANDED to

5

Santa Cruz County Superior Court. The clerk shall close this file.

6

IT IS SO ORDERED.

7
8

Dated: August 28, 2012
EDWARD J. DAVILA
United States District Judge

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
CASE NO. 5:12-cv-03805 EJD
ORDER REMANDING CASE