E-Trade Bank v. Mainusch et al

Filing 11

ORDER REMANDING CASE.. Signed by Judge Lucy H. Koh on 2/6/2013. (lhklc2, COURT STAFF) (Filed on 2/6/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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E-TRADE BANK,

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Plaintiff,
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v.
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HAROLD E. MAINUSCH, LAURA M.
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MAINUSCH, and DOES 1 through 5, inclusive, )
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Defendants.
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Case No.: 12-CV-06439-LHK
ORDER REMANDING UNLAWFUL
DETAINER ACTION TO SANTA
CLARA COUNTY SUPERIOR COURT

Defendants removed this action for unlawful detainer from the Santa Clara County Superior

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Court on December 20, 2012. However, it appears that the Court lacks subject matter jurisdiction

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over the removed action. Although Plaintiff has not moved to remand, this Court has a continuing

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obligation to raise issues of subject matter jurisdiction whenever it appears that jurisdiction may be

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lacking. Fed. R. Civ. P. 12(h)(3); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983).

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If a Court lacks subject matter jurisdiction over a removed action, that action must be remanded.

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28 U.S.C. § 1447(c). Defendant bears the burden of establishing that removal is proper.

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Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009).

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In the notice of removal, Defendants assert that grounds for removal exist because their

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principal claim for relief arises under federal law. However, a defendant may remove a case to

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federal court only if “the plaintiff’s complaint establishes that the case ‘arises under’ federal law.”

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Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 10 (1983). It is well-

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settled that a case may not be removed to federal court on the basis of a federal defense. Id. at 14.
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Case No.: 12-CV-06439-LHK
ORDER REMANDING UNLAWFUL DETAINER ACTION

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Rather, “the federal question must ‘be disclosed upon the face of the complaint, unaided by the

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answer.’” Provincial Gov’t of Marinduque, 582 F.3d at 1086 (quoting Phillips Petroleum Co. v.

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Texaco Inc., 415 U.S. 125, 127-28 (1974)). Because Plaintiff’s complaint for unlawful detainer

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raises no federal claims, there appears to be no basis for removal and no subject matter jurisdiction

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in this Court. See, e.g., Litton Loan Servicing, L.P. v. Villegas, C 10-05478 PJH, 2011 WL 204322

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(N.D. Cal. Jan. 21, 2011); Partners v. Gonzalez, C-10-02598 EDL, 2010 WL 3447678 (N.D. Cal.

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Aug. 30, 2010).

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Accordingly, the unlawful detainer action is hereby REMANDED to Santa Clara County
Superior Court.

United States District Court
For the Northern District of California

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IT IS SO ORDERED.

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Dated: February 6, 2013

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_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 12-CV-06439-LHK
ORDER REMANDING UNLAWFUL DETAINER ACTION