Westlaw Delivery Summary Report for SOTO,ANTONIO JOS

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Date/Time of Request: Thursday, August 19, 2010 13:03 Central
Client Identifier: TWEN-CLIENT
Database: USER-DEFINED-MB
Citation Text: Not Reported in F.Supp.2d
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 FOR EDUCATIONAL USE ONLY
Not Reported in F.Supp.2d, 2003 WL 1563999 (N.D.Cal.)
(Cite as: 2003 WL 1563999 (N.D.Cal.))
Briefs and Other Related Documents
Only the Westlaw citation is currently available.
United States District Court,
N.D. California.
Madeleine COOPER and Martin Cooper,
Plaintiffs,
v.
WASHINGTON MUTUAL BANK, Defendant.
No. C03-554 VRW.
March 19, 2003.
ORDER
WALKER, J.
* On February 7, 2003, plaintiffs Madeleine and
Martin Cooper (the Coopers), acting pro se, filed a
notice of removal of an action commenced in state
court. Doc # 1. Although the Coopers identify
themselves as plaintiffs in the pleadings filed with
this court, they are in fact the defendants in the un-
lawful detainer proceeding in Contra Costa County
superior court that they seek to remove. See Unlaw-
ful Detainer Compl (Doc # 11), Exh B.
In the complaint in that action (unlawful detainer
complaint), Washington Mutual Bank (WMB) al-
leges that Madeleine Cooper ( Cooper) and un-
named Doe defendants own premises located at 629
Oakshire Place, Alamo, California. See id at 2. The
unlawful detainer complaint alleges that Cooper re-
ceived personal service of a lawful notice to quit
and deliver possession of the premises to WMB
within three days of service of that notice. See id.
The unlawful detainer complaint asserts that
Cooper failed to do so in the allotted time. See id.
WMB seeks available relief under state law. See id.
In their notice of removal, the Coopers do not
identify any claims in the unlawful detainer com-
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 1
plaint that might form the basis for the court's re-
moval jurisdiction; nor have they provided the court
with a copy of the unlawful detainer complaint.
Rather, the Coopers have filed an additional com-
plaint (Doc # 3) and motion for a temporary re-
straining order (TRO) (Doc # 5) that seek various
forms of relief against WMB and the state court
judge presiding over the unlawful detainer proceed-
ings. The Coopers have moved for a TRO against
Judge Stephen Houghton barring him from con-
ducting further proceedings in this matter in state
court. See Doc # 5. And the Coopers' have filed a
“verified complaint” with this court asserting
claims against WMB under 12 USC § 1828 and ad-
ditional constitutional claims against WMB pursu-
ant to 42 USC § 1983. See Coopers' Compl (Doc #
3) at 1-2. The only potential sources of federal jur-
isdiction over the unlawful detainer action the
Coopers identify are the claims asserted in the
complaint filed by the Coopers, not that filed by
WMB, the plaintiff in the unlawful detainer action.
Section 1446 of Title 28 of the United States Code
requires defendants seeking removal to file in the
district court to which they are seeking to remove
an action a notice of removal and a copy of all pro-
cess, pleadings and orders served upon them in the
action sought to be removed. 28 USC § 1446(a).
Although this defect is merely procedural, hence
correctable, the filing of these documents
is_required because it is the state law complaint to
which the court looks to determine whether it has
jurisdiction over the removed action. See, e g, Riehl
v National Mutual Insurance Co, 374 F.2d 739 (7th
Cir1967).
“When a case is removed to federal court on the
basis of federal question jurisdiction, the federal
question must be clear from the face of the com-
plaint in the state court action.” Tam, 1998 WL
409879 at *1 (citing Gully v First National Bank of
Meridian, 299 U.S. 109, 113 (1936); emphasis sup-
plied). The existence of a defense or counterclaim
that raises a federal question cannot ground federal
 FOR EDUCATIONAL USE ONLY Page 2
Not Reported in F.Supp.2d, 2003 WL 1563999 (N.D.Cal.)
(Cite as: 2003 WL 1563999 (N.D.Cal.))

question jurisdiction on removal; the court's juris- tion.

diction is determined by looking to the plaintiff's
well-pleaded complaint. See Franchise Tax Board
of California v Construction Laborers Vacation
Trust for Southern California, 463 U.S. 1, 10
(1983); Rath Packing Co v. Becker, 530 F.2d 1295,
1303-04 (9th Cir1975).
*2 “If at any time before final judgment it appears
that the district court lacks subject matter jurisdic-
tion, the case shall be remanded.” 28 USC §
1447(c). Whether or not a party questions the
court's subject matter jurisdiction, the court is re-
quired to raise and address the issue sua sponte. See
FW/PBS, Inc v. City of Dallas, 493 U.S. 215, 229
(1990); Washington Local Lodge No 104 v Interna-
tional Brotherhood of Boilermakers, 621 F.2d
1032, 1033 (9th Cir1980).
Because the court lacks subject matter jurisdiction,
the court orders this action REMANDED to Contra
Costa County superior court for all further proceed-
ings. The court directs the clerk to TERMINATE
all pending motions (Docs 5, 6, 9, 12) and close the
file.
IT IS SO ORDERED.
N.D.Cal.,2003.
Cooper v. Washington Mut. Bank
Not Reported in F.Supp.2d, 2003 WL 1563999
(N.D.Cal.)
Briefs and Other Related Documents (Back to top)
• 3:03cv00554 (Docket) (Feb. 07, 2003)

The state action the Coopers have sought to re- END OF DOCUMENT
move to this court is an unlawful detainer action in-
volving a bank foreclosure on certain property
owned by the Coopers. The complaint states no
cause of action under federal law, nor has plaintiff
pointed to any claim in the unlawful detainer com-
plaint that raises a question “arising under the Con-
stitution, laws, or treaties of the United States.” 28
USC § 1331. An unlawful detainer action does not
raise a question arising under federal law and so,
once removed, must be remanded for lack of juris-
diction. See Bassin, 2000 U.S. Dist Lexis 11255 at
*2.

If the court's lack of subject matter jurisdiction over

an action is clear and unarguable, as here, the court
may remand without further briefing or argument
from the parties. See Air-Shields, Inc v. Fullam,
891 F.2d 63, 65 (3rd Cir1989); Maniar v. FDIC,
979 F.2d 782 (9th Cir1992); Schwarzer, Tahisma &
Wagstaffe, California Practice Guide: Federal
Civil Procedure before Trial § 2:1092 (The Rutter
Group 2002). Although WMB has filed a motion to
remand (Doc # 9), the court is satisfied that the
claims raised by the unlawful detainer complaint
demonstrate conclusively that the court lacks juris-
diction over WMB's state law unlawful detainer ac-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Westlaw Delivery Summary Report for SOTO,ANTONIO JOS

Date/Time of Request: Thursday, August 19, 2010 13:03 Central

Client Identifier: TWEN-CLIENT
Database: KEYCITE-HIST
Citation Text: 2003 WL 1563999
Service: KeyCite
Lines: 7
Documents: 1
Images: 0

The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters,
West and their affiliates.
 AUTHORIZED FOR EDUCATIONAL USE ONLY

Date of Printing: Aug 19, 2010

KEYCITE

Cooper v. Washington Mut. Bank, 2003 WL 1563999 (N.D.Cal.,Mar 19, 2003) (NO. C03-554 VRW)
History

Direct History

=> 1 Cooper v. Washington Mut. Bank, 2003 WL 1563999 (N.D.Cal. Mar 19, 2003) (NO. C03-554
VRW)

Court Documents

Dockets (U.S.A.)

N.D.Cal.
2 COOPER ET AL v. WASHINGTON MUTUAL BANK, F.A., NO. 3:03cv00554 (Docket)
(N.D.Cal. Feb. 07, 2003)

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