The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER REMANDING THIS CASE TO THE SUPERIOR COURT and CLOSING THIS ACTION
On May 13, 2008, defendant*fn1 Jessica Parafino Refuerzo ("Refuerzo") filed a notice of removal from the State of California, Superior Court for the County of San Diego. The state court complaint alleges a claim against Refuerzo*fn2 for "unlawful detainer against occupants holding over after a non-judicial sale under power of sale in deed of trust" under California Code of Procedure §§ 1166, 1177. Plaintiff sought and was granted an order that the summons be served by positing on premises and mailing. (Order filed March 5, 2008, attached to notice of removal). Refuerzo filed an answer to the unlawful detainer complaint on March 10, 2008.
(Answer, attached to notice of removal).
Having reviewed Refuerzo's notice of removal, the Court finds it does not have subject matter jurisdiction over this action and the removal is procedurally defective. The Court therefore will remand the case to the San Diego County Superior Court.
1. Lack of Subject Matter Jurisdiction
The federal court is one of limited jurisdiction. See Gould v. Mutual Life Ins. Co. of N.Y., 790 F.2d 769, 774 (9th Cir. 1986). It possesses only that power authorized by the Constitution or a statute. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). It is constitutionally required to raise issues related to federal subject matter jurisdiction, and may do sua sponte. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-94 (1998); see Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990).
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); Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). 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. Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 10-11, 103 S.Ct. 2841 (1983). A federal court has jurisdiction over an action involving citizens of different states and the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332.
"The burden of establishing federal jurisdiction is on the party seeking removal, and the removal statute is strictly construed against removal jurisdiction." Nishimoto v. FedermanBachrach & Assoc., 903 F.2d 709, 712 n.3 (9th Cir. 1990). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
Whether federal jurisdiction exists is governed by the well-pleaded complaint rule. Caterpillar, 482 U.S. at 392. The well-pleaded complaint rule is a "powerful doctrine [that] severely limits the number of cases in which state law 'creates the cause of action' that may be initiated in or removed to federal district court ..." Franchise Tax Bd., 463 U.S. at 9-10. Under this rule, the federal question must be "presented on the face of the plaintiff's properly pleaded complaint." Id.; accord Wayne v. DHL Worldwide Express, 294 F.3d 1179, 1183 (9th Cir. 2002).
In the notice of removal, Refuerzo states "the complaint pled alleges claims 'arising under' federal law." (Notice of removal at 1). It does not. Plaintiff in the state court action set forth a single cause of action for unlawful detainer -- a claim that arises exclusively under state law. Therefore, this Court does not have subject matter jurisdiction on the basis of federal question.
It is unclear whether Refuerzo is attempting to remove her case based on diversity jurisdiction. As noted above, a federal court has jurisdiction over an action involving citizens of different states and the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332. The diversity statute must be strictly construed. Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1092 (9th Cir. 1983). The party seeking to invoke the court's diversity jurisdiction bears the burden of establishing that jurisdiction exists. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
Refuerzo states that she is "presumed a Citizen of the United States," and she "dwells in, and is a Citizen of California; not a Corporation, Citizen of the United States, not a Federal Agent or entity." (Notice of removal at 1). But her notice of removal is devoid of any statement concerning the citizenship of plaintiff. Refuerzo has not established diversity jurisdiction.
Plaintiff has not shown that the state court action could have originally been brought in federal court; therefore, ...