The opinion of the court was delivered by: Hon. John A. Houston United States District Judge
ORDER GRANTING PLAINTIFF'S MOTION FOR REMAND AND GRANTING IN PART AND DENYING IN PART PLAINTIFF'S REQUEST FOR SANCTIONS [Doc. No. 2]
On June 29, 2007, Jill Mares, Plaintiff's parent*fn1 , filed a petition for compromise of a disputed claim in the Superior Court of California, San Diego County requesting court approval of a compromise settlement reached with Chula Vista Elementary School District. The petition alleged that an action in the Office of Administrative Hearings, Special Education Division would be compromised without a trial on the merits of the claim. Complaint at 2. The original claim involved Plaintiff's academic school year 2006 through 2007. Chula Vista Elementary School District agreed to pay $19,814.21 for private educational expenses resulting from Defendant's failure to provide a free appropriate public education in violation of the Individuals with Disabilities Education Act ("IDEA"). Complaint at 5, 6.
On July 20, 2007, Defendant removed the action to this court. Plaintiff filed the pending motion for remand on July 27, 2007, along with a request to expedite the motion. The Court granted the request, set a shortened briefing schedule and vacated the original hearing date. Defendant filed an opposition to the motion for remand on August 10, 2007. Plaintiff filed a reply on August 13, 2007. After a thorough review of the parties' submissions and for the reasons discussed below, the Court GRANTS the motion for remand.
Plaintiff seeks remand of this action arguing the petition is not a civil action subject to removal jurisdiction, there is no live case or controversy pending, Defendant cannot base removal jurisdiction on an anticipated defense, the relief sought by the petition is equitable and declaratory in nature and the Court should remand under the Doctrine of Abstention. Plaintiff also requests sanctions.
Defendant argues the action was properly removed because it is based upon claims, injuries and an agreement for services which arise under the Federal Individuals with Disabilities Act. Defendant further argues the request for sanctions should be denied.
The federal court is one of limited jurisdiction. See Gould v. Mutual Life Ins. Co. v. New York, 790 F.2d 769, 774 (9th Cir. 1986). As such, it cannot reach the merits of any dispute until it confirms its own subject matter jurisdiction. Steel Co. v. Citizens for a Better Environ., 523 U.S. 83, 94 - 95 (1998). "Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Id. (quoting Ex parte McCardle, 74 U.S. 506, 514 (1868)). District courts must construe the removal statutes strictly against removal and resolve any uncertainty as to removability in favor of remanding the case to state court. Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988).
Removal jurisdiction is governed by 28 U.S.C. § 1441 et seq. A state court action can only be removed if it could have originally been brought in federal court. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Thus, for an action to be removed on the basis of federal question jurisdiction, the complaint must establish either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on the resolution of substantial questions of federal law. See Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 27 - 28 (1983). The plaintiff is the master of the claim, and federal jurisdiction exists only when a federal question is presented on the face of the properly pleaded complaint. See Caterpillar, 482 U.S. at 392. The Court determines its jurisdiction from the complaint as it existed at the time of removal, not as subsequently amended. Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1065 (9th Cir. 1979). Further, removal cannot be based on a counterclaim. Takeda v. Northwestern Nat'l Life Ins. Co., 765 F.2d 815, 821 (9th Cir. 1985).
The defendant has the burden of establishing that removal is proper and supporting its jurisdictional allegations with competent proof. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam); Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712 n.3 (9th Cir. 1990). In addition, the defendant must file a timely notice of removal.
28 U.S.C. § 1446(b). The notice of removal must be filed within 30 days after receipt of a copy of the initial pleading if removability ...