-DAD (PS) Blue Mountain Homes LLC v. Vasquez, No. 2:2011cv02158 - Document 4 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 8/19/2011 recommending that this action be summarily remanded to the Solano Superior Court ; referred to Judge Morrison C. England. Objections within fourteen days after being served with these findings and recommendations. (Duong, D)

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-DAD (PS) Blue Mountain Homes LLC v. Vasquez Doc. 4 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BLUE MOUNTAIN HOMES LLC, 11 12 13 14 15 16 Plaintiff, No. CIV S-11-2158 MCE DAD PS vs. ENRIQUE VASQUEZ, et al., Defendants. FINDINGS AND RECOMMENDATIONS / By Notice of Removal filed August 15, 2011, this unlawful detainer action was 17 removed from Solano County Superior Court by defendant Enrique Vasquez, who paid the 18 required filing fee. Defendant Vasquez is proceeding pro se. Accordingly, the matter has been 19 referred to the undersigned for all purposes encompassed by Local Rule 302(c)(21). 20 It is well established that the statutes governing removal jurisdiction must be 21 “strictly construed against removal.” Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 22 (9th Cir. 1979) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941)). 23 “Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first 24 instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). “‘The burden of establishing 25 federal jurisdiction falls on the party invoking removal.’” Harris v. Provident Life & Accident 26 Ins. Co., 26 F.3d 930, 932 (9th Cir. 1994) (quoting Gould v. Mut. Life Ins. Co., 790 F.2d 769, 1 Dockets.Justia.com 1 771 (9th Cir.1986)). Moreover, “the existence of federal jurisdiction depends solely on the 2 plaintiff’s claims for relief and not on anticipated defenses to those claims.” ARCO Envtl. 3 Remediation, LLC v. Dep’t of Health & Envtl. Quality, 213 F.3d 1108, 1113 (9th Cir. 2000). 4 Where it appears that the district court lacks subject matter jurisdiction over a removed case, “the 5 case shall be remanded.” 28 U.S.C. § 1447(c). 6 In conclusory fashion, defendant Vasquez alleges as follows in his notice of 7 removal: plaintiff filed an unlawful detainer action in Solano County Superior Court; defendant 8 Vasquez filed a demurrer alleging that plaintiff’s notice to vacate premises did not comply with 9 The Protecting Tenants at Foreclosure Act, 12 U.S.C. § 5220; the state court did not sustain 10 defendant’s demurrer. (Notice of Removal (Doc. No. 1) at 1-2.) Defendant argues that 11 “[f]ederal question jurisdiction exists because Defendants’ demurrer, a pleading, depend [sic] on 12 the determination of Defendants’ rights and Plaintiff’s duties under federal law.” (Id. at 3.) 13 Defendant’s notice of removal includes a copy of plaintiff’s complaint (Id., Ex. 14 A.) It is evident from plaintiff’s complaint that this action is nothing more than a garden-variety 15 unlawful detainer action filed against the former owner of real property located in California and 16 based wholly on California law. Plaintiff’s complaint does not involve any “claim or right 17 arising under the Constitution, treaties or laws of the United States” that would have permitted 18 plaintiff to file this action originally in federal court. See 28 U.S.C. § 1441(b). Defendant’s own 19 argument demonstrates that if there is any federal claim in this action it arises solely from the 20 affirmative defense asserted by defendant and not from the claims alleged in plaintiff’s unlawful 21 detainer complaint. 22 For the reasons set forth above, the court finds that defendant Vasquez has failed 23 to meet his burden of establishing a basis for federal jurisdiction. 24 ///// 25 ///// 26 ///// 2 1 2 Accordingly, IT IS HEREBY RECOMMENDED that this action be summarily remanded to the Superior Court of California, County of Solano and this case be closed. 3 These findings and recommendations will be submitted to the United States 4 District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 5 fourteen days after being served with these findings and recommendations, any party may file 6 written objections with the court and serve a copy on all parties. A document presenting 7 objections should be titled “Objections to Magistrate Judge’s Findings and Recommendations.” 8 Any reply to objections shall be filed and served within seven days after service of the objections. 9 DATED: August 19, 2011. 10 11 12 13 DAD:kw Ddad1\orders.pro se\bluemtn-vasquez2158.f&r.remand.ud 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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