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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

GLYNIS ALBERTS-WOOD, NO. CIV.S-04-2194 GEB DAD PS

Plaintiff,

v. FINDINGS AND RECOMMENDATIONS

JOSE FREMONDE, et al.,

Defendants.

__________________________/

This matter came before the court on February 18, 2005, for

a Status (Pretrial Scheduling) Conference. There was no appearance

on behalf of plaintiff. Defendant Jose Fremonde, proceeding pro se,

appeared on his own behalf. There was no appearance on behalf of

defendant Juan Fremonde

Defendants removed this action from state court by a notice

of removal filed on October 15, 2004. However, as discussed at the

status conference, as a general rule an action is removable to a

federal court only if it might have been brought there originally. 

28 U.S.C. § 1441(a). Absent jurisdiction based on diversity of

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citizenship, an action is removable to federal courts if it arises

"under the Constitution, laws, or treaties of the United States." 28

U.S.C. § 1441(b). However, “the mere presence of a federal issue in

a state cause of action does not automatically confer federalquestion jurisdiction.” Merrell Dow Pharmaceuticals, Inc. v.

Thompson, 478 U.S. 804, 813 (1986). A "substantial, disputed

question of federal law is a necessary element of one of [the

plaintiff's] well-pleaded state claims[.]" Franchise Tax Board of

California v. Construction Laborers Vacation Trust for Southern

California, 463 U.S. 1, 13 (1983).

The existence of a defense or counterclaim that raises a

federal question does not give rise to federal question jurisdiction

and thus may not provide a basis for removal. See Caterpillar Inc.

v. Williams, 482 U.S. 386, 393 (1987); Franchise Tax Board of

California, 463 U.S. at 10; Rath Packing Co v. Becker, 530 F.2d 1295,

1303-04 (9th Cir. 1975). The court's jurisdiction is determined by

looking to the plaintiff's well-pleaded complaint. The "well-pleaded

complaint rule" provides that federal jurisdiction exists "only when

a federal question is presented on the face of the plaintiff's

properly pleaded complaint." Caterpillar, 482 U.S. at 392. The rule

makes the plaintiff the "master of the claim; he or she may avoid

federal jurisdiction by exclusive reliance on state law." Id.

(citations omitted). Thus, a plaintiff may by the allegations of his

or her complaint determine whether his or her case is removable to

the federal courts. See id. at 392 n.7 (citing Great North R. Co. v.

Alexander, 246 U.S. 276, 282 (1918)).

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Finally, "[i]f at any time before final judgment it appears

that the district court lacks subject matter jurisdiction, the case

shall be remanded." 28 U.S.C. § 1447(c). Whether or not a party

questions the court's subject matter jurisdiction, the court is

required to raise and address the issue sua sponte. Fed. R. Civ. P.

12(h)(3); FW/PBS, Inc v. City of Dallas, 493 U.S. 215, 231 (1990);

Washington Local Lodge No 104 v International Brotherhood of

Boilermakers, 621 F.2d 1032, 1033 (9th Cir. 1980).

At the status conference the court indicated that it

appears from the face of plaintiff’s state court complaint that this

court lacks subject matter jurisdiction over this matter. 

Nonetheless, out of an abundance of caution the court granted

defendants a period of ten (10) days within which to file a response

setting forth any contentions as to why subject matter jurisdiction

exists. Defendants timely filed such a response. However, that

response, along with the allegations of plaintiff’s complaint, only

confirm that this matter is a garden variety unlawful detainer action

which is properly resolved in state court.

Accordingly, IT IS HEREBY RECOMMENDED that:

1. This state civil action be summarily remanded to the

Sacramento County Superior Court; and

2. The Clerk be directed to close this case.

These findings and recommendations are submitted to the

United States District Judge assigned to the case, pursuant to the

provisions of 28 U.S.C. § 636(b)(1). Within ten (10) days after

being served with these findings and recommendations, any party may

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file written objections with the court and serve a copy on all

parties. Such a document should be captioned “Objections to

Magistrate Judge’s Findings and Recommendations.” The parties are

advised that failure to file objections within the specified time may

waive the right to appeal the District Court’s order. See Martinez

v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: July 21, 2005.

DAD:th

DDad1\orders.prose\alberts2194.f&r.remand

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