The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND
Defendant San Diego Unified Port District ("Defendant") removed this case from San Diego Superior Court on December 17, 2007. (Doc. No. 1.) Plaintiff Daniel Renard ("Plaintiff"), pro se, filed a motion to remand on January 2, 2008. (Doc. No. 3.) Defendant filed its opposition on January 29, 2008. (Doc. No. 7.) On February 4, 2008, Plaintiff filed his reply brief. (Doc. No. 8.) The Court submits the motion on the papers pursuant to its discretion under Civil Local Rule 7.1(d)(1). For the reasons stated below, the Court GRANTS Plaintiff's motion to remand the case to state court.
Plaintiff is the owner and operator of vessels in San Diego Bay. (Doc. No. 1.) On August 23, 2003, Plaintiff filed a civil action against Defendant in this court. (Id.) On or about December 2, 2003, Plaintiff and Defendant entered into a settlement agreement. (Id.) Under the agreement, Defendant granted Plaintiff a disabled permit to anchor his vessel in a free anchorage area, and Plaintiff agreed to dismiss his claims with prejudice. (Id.) On or about June 6, 2006, Defendant's Board of Port Commissioners voted to permanently eliminate the free anchorage area and revoked Plaintiff's disabled permit. (Id.) Plaintiff alleges that Defendant thereafter unlawfully seized and impounded vessels, including the Plaintiff's vessel. (Id.)
On August 15, 2007, Plaintiff filed suit against Defendants in San Diego Superior Court. (Id.) Plaintiff's initial complaint stated seven causes of action: enforcement of settlement agreement, breach of written contract, negligent misrepresentation, fraud and deceit, breach of implied covenant of good faith and fair dealing, injunctive relief and disgorgement under California Business and Professions Code § 17200 et seq., and declaratory relief. (Doc. No. 8.) On November 9, 2007, the Superior Court denied Defendant's motion for demurrer. (Id.) Plaintiff's amended complaint, filed on November 19, 2007, eliminated the § 17200 cause of action. (Doc. No. 1.) All six remaining causes of action at least in part arise from the parties' negotiation of the settlement agreement and Defendant's alleged breach of that agreement. Plaintiff's declaratory relief cause of action seeks a determination of the parties' rights and duties under the settlement agreement and 33 C.F.R. § 110.90, which defines the anchorage grounds for vessels in San Diego Bay. Plaintiff alleges that Defendant violated this regulation when it eliminated the free anchorage area in the San Diego Bay and revoked Plaintiff's disabled permit. (Id.)
On December 17, 2007, Defendant removed Plaintiff's amended complaint to this court pursuant to 28 U.S.C. § 1441(b). (Id.) Defendant contends that it may remove Plaintiff's complaint under 42 U.S.C. § 1983 and 33 C.F.R. § 110.90. (Id.) However, Plaintiff's well-pleaded complaint does not allege a cause of action under 42 U.S.C. § 1983 or 33 C.F.R. § 110.90.
A civil action is removable under 28 U.S.C. § 1441(b) if it is "founded on a claim or right arising under the Constitution, treaties or laws of the United States ... ." 28 U.S.C. § 1441(b). A claim arises under federal law if "a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983). See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987) (holding that the "party who brings the suit is the master to decide what law he will rely upon.") Courts should construe removal statutes restrictively and resolve doubts regarding removability in favor of remanding the case to state court. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
Defendant has failed to demonstrate that removal is proper in this action. Plaintiff's first five claims seek damages from Defendant's alleged breach of written contract, negligent misrepresentation, fraud & deceit, and breach of implied covenant of good faith and fair dealing. (Doc. No. 1.) These clearly do not arise under federal law. See, e.g. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 382 (1994) (finding that state courts should hear settlement agreement enforcement cases, unless an independent basis for jurisdiction exists); Gardener v. UICI, 508 F.3d 559 (9th Cir. 2007) (indicating that remand of plaintiff's breach of contract and conspiracy suit was proper without diversity jurisdiction). Federal courts also do not have inherent or ancillary jurisdiction to enforce a settlement agreement simply because the plaintiff filed the underlying lawsuit in federal court. Kokkonen, 511 U.S. at 380-81.
Contrary to Defendant's assertion, Plaintiff did not bring a cause of action under 42 U.S.C. § 1983 or 33 C.F.R. § 110.90. First, Plaintiff's well-pleaded complaint does not allege that Defendant violated 42 U.S.C. § 1983. Removal jurisdiction is not conferred simply because plaintiff had an opportunity to sue under a federal statute. See Rains v. Criterion Systems, Inc., 80 F.3d 339, 343-44 (9th Cir. 1996) (holding that removal was improper because although plaintiff's complaint referred to a federal statute, the plaintiff's wrongful termination claim did not arise under the federal statute); Easton v. Crossland Mortgage Corp., 114 F.3d 979, 982 (9th Cir. 1997) (finding no removal jurisdiction when a plaintiff's sexual harassment complaint referred to Title VII of the Civil Rights Act and the U.S. Constitution but sought only state law remedies). Plaintiff's complaint makes no mention of 42 U.S.C. § 1983. Therefore, removal under 42 U.S.C. § 1983 is improper.
Second, Plaintiff's declaratory relief cause of action, which refers to 33 C.F.R. § 110.90, does not confer removal jurisdiction. 33 C.F.R. § 110.90, which defines the anchorage grounds for vessels in San Diego Bay, does not create a federal cause of action. See Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 817 (1986).
In Merrell, the court stated that when evaluating whether a federal statute creates a federal cause of action, courts should look to: (1) whether Congress passed the statute to benefit the class of plaintiffs to which plaintiff belongs, (2) whether Congress intended to provide a private right of action, (3) whether a federal cause of action would further the statute's underlying scheme, and (4) whether state law traditionally controls the plaintiff's cause of action. Merrell, 478 U.S. at 810-11. Congress passed 33 U.S.C. § 471, which authorized 33 C.F.R. § 110.90, to ensure safe and efficient nautical navigation, not to provide allegedly injured parties with a private right of action. 33 U.S.C. §§ 471, 1221-36, 2030, 2035, and 2071. Morever, state law traditionally controls Plaintiff's causes of action. Therefore, a federal question does not arise from Plaintiff's claim for declaratory relief relating to 33 C.F.R. § 110.90 because the regulation does not create a federal cause of action.
Plaintiff's right to relief also does not rely on a court's resolution of a substantial federal law question. The regulation anticipates state actors resolving issues arising under 33 C.F.R. § 110.90, noting that "[m]ariners anchoring in these anchorages, excluding Anchorage A-6, should consult applicable local ordinances of the San Diego Unified Port District." 33 C.F.R. ...