Opinion
Case No. CV 11-05037 DDP (JEMx)
08-26-2011
K-HOMES INC., TRUSTEE OF THE CHEAM TRUST #2 085, Plaintiff, v. DAVID A. ANNETT, Defendant.
ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE REMANDED FOR
LACK OF SUBJECT MATTER JURISDICTION
The court orders Defendant to show cause why this action should not be remanded to state court for lack of subject matter jurisdiction. Plaintiff filed this action in state court against Defendant, alleging that Defendant unlawfully failed to surrender possession of the real property located at 2085 Cheam Ave., Simi Valley, CA 93063. Plaintiff alleges that Plaintiff purchased the property at a trustee sale. (Compl. ¶5.) Plaintiff's Complaint states that Plaintiff seeks $78.34 per day. (Compl. at 3.)
On June 14, 2011, Defendant removed to this court, asserting federal question jurisdiction based on a defense under the Protecting Tenants at Foreclosure Act, 12 U.S.C. § 5220. (Dkt. No. 1.)
Under 28 U.S.C. § 1441(b), a defendant may remove to federal court "[a]ny civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States . . . ." "Under the longstanding well-pleaded complaint rule, however, a suit 'arises under' federal law only when the plaintiff's statement of his own cause of action shows that it is based upon federal law." Vaden v. Discover Bank, 129 S. Ct. 1262, 1272 (2009) (internal quotation marks and citation omitted). "Federal law cannot be predicated on an actual or anticipated defense . . . . Nor can federal question jurisdiction rest upon an actual or anticipated counterclaim." Id. (citations omitted). Here, nothing on the face of Plaintiff's complaint suggests a federal question, and Defendant offers no support for Defendant's assertion that the matter presents a federal question.
Accordingly, the court orders the parties to file cross-briefs, not to exceed five pages, by Friday, September 9, 2011, to show cause why this action should not be remanded for lack of subject matter jurisdiction. The parties should also deliver a courtesy copy to chambers, Room 244-J, Second Floor, 312 N. Spring Street, Los Angeles. The court notes that the Defendant has the burden of establishing removal jurisdiction. If a party does not file a brief, the court will regard the party as not opposing remand of this matter.
IT IS SO ORDERED.
DEAN D. PREGERSON
United States District Judge