The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
On July 8, 2008, Plaintiff moved to remand this action to state court under 28 U.S.C. § 1447 and for an order granting costs and attorney's fees. Defendants oppose the motion. For the following reasons, Plaintiff's motion to remand is granted and Plaintiff's request for attorney's fees is denied.
On September 26, 2007, Plaintiff filed a Complaint in the Superior Court of California for the County of Solano against Defendants alleging, inter alia, that Defendant Steven Garcia ("Garcia"), employed as a police officer for Defendant City of Fairfild, repeatedly punched Plaintiff causing head trauma after he was apprehended by other unnamed officers. (Compl. ¶¶ 3-13.) In the preliminary allegations section of his Complaint, Plaintiff alleges "Defendant GARCIA exceeded the authority invested in him as a police officer under the US Constitution and as an employee of Defendant FAIRFIELD." (Id. ¶ 3.)
Plaintiff's Complaint contains the following seven causes of action: (1) assault and battery; (2) violation of the California Civil Rights Act; (3) intentional infliction of emotional distress; (4) negligence; (5) negligent infliction of emotional distress; (6) negligent selection, training, retention, supervision, investigation, and discipline; and (7) respondeat superior. (Id. at 3:5-9:4.) Plaintiff alleges in his sixth cause of action (for negligent selection, training, retention, supervision, investigation, and discipline) that Defendants have a duty of care to properly and adequately select and train Garcia and that Defendants "have been given notice on repeated occasions of a pattern of ongoing constitutional violations and illegal practices by [Garcia.]" (Id. ¶¶ 38-39.) Plaintiff further alleges Defendants "have demonstrated deliberate indifference to this pattern and practice of constitutional violations and illegal practices" and their lack of adequate supervisory response "demonstrates the existence of an informal custom or policy which tolerates and promotes the continuing use of excessive force against FAIRFIELD citizens . . . ." (Id. ¶¶ 40-41.) Plaintiff alleges in his seventh cause of action (for respondeat superior) that Garcia and Does 1 through 15 "committed the acts . . . within the course and scope of their employment . . . ." (Id. ¶ 44.)
On November 13, 2007, Defendants removed this action to the Eastern District of California under 28 U.S.C. §§ 1331 and 1441(b) and (c). Defendants argued in their notice of removal that federal question jurisdiction exists because Plaintiff alleged Garcia exceeded his authority under the U.S. Constitution and because Plaintiff's "Sixth and Seventh Causes of Action [allege] a clear claim for liability under" Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). (Notice of Removal ¶¶ 2-3.)
"[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by  the defendants, to the district court  for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). The removal statute is strictly construed against removal jurisdiction, see Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992), and the party seeking removal "has the burden of establishing that removal [is] proper." Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). There is a "'strong presumption' against removal" with "any doubt" resolved in favor of remand. Gaus, 980 F.2d at 566. Defendants' removal is premised on allegations that federal question jurisdiction exists. To sustain removal on this basis, "a defendant [must establish] Plaintiff's case 'arises under' federal law." Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 10 (1983).
Plaintiff argues his statement regarding Garcia's actions exceeding constitutional authority was "simply stating the authority of police officers in general. Federal jurisdiction does not arise where, as here, plaintiff refers to federal authority as evidence that defendant violated state law." (Mot. at 5:23-25 (citing ARCO Envtl. Remediation, L.L.C. v. Dept. of Health and Evntl. Quality of Mont., 213 F.3d 1108, 1113 (9th Cir. 2000)).) Plaintiff further argues he "has intentionally omitted any federal law causes that may have been available including Monell and claims under 42 U.S.C. [§] 1983." (Id. at 6:17-19.)
Defendants counter "[r]egardless of what a plaintiff chooses to label its cause of action, it is the specific allegations in support of that cause of action which control. . . . [The sixth] cause of action, which specifically incorporates all preceding paragraphs as though fully set forth therein, read in conjunction with Paragraph 3, alleges a Monell claim. A civil rights claim by its elements is based upon federal law." (Opp'n at 2:7-14 (citing Labram v. Havel, 43 F.3d 918, 920-21 (4th Cir. 1995) (holding dismissal of claim for "sexual molestation," which was not a recognized tort action, unwarranted where notice pleading standard was met to put defendant on notice of claim for battery)).)
"When a claim can be supported by alternative and independent theories -- one of which is a state law theory and one of which is a federal law theory -- federal question jurisdiction does not attach because federal law is not a necessary element of the claim." Rains v. Criterion Sys., Inc., 80 F.3d 339, 346 (9th Cir. 1996). Accordingly, even if Plaintiff's sixth and seventh cause of action could constitute a Monell claim, they also constitute state tort claims, and thus do not necessarily arise under federal law. See Mary M. v. City of L.A., 54 Cal. 3d 202, 209 (1991) ("The doctrine of respondeat superior applies to public and private employers alike."); White v. Super. Ct., 225 Cal. App. 3d 1505, 1511 (1990) (Recognizing causes of action for "negligent hiring, training, and retention and for failure to train, supervise, and discipline" against the City and County of San Francisco for police officer's misconduct.).
Nonetheless, federal question removal jurisdiction exists where a state law claim "necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state jurisdictional responsibilities." Grable & Sons Metal Prods. Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005). Here, Plaintiff's sixth cause of action contains allegations of "excessive force" and that Defendants "have demonstrated deliberate indifference to this pattern and practice of constitutional violations and illegal practices . . . ." (Compl. ¶¶ 39-40 (emphasis added).) These allegations appear to raise federal constitutional violations, but any stated federal issue is not a necessary element of Plaintiff's sixth cause of action because that claim could also "be supported by alternative and independent" state law theories of liability. Rains, 80 F.3d at 346. The federal constitution is not expressly mentioned except in the preliminary allegations section of the Complaint, and the referenced illegal practices could be based on the claims that Defendant Garcia violated the California Civil Rights Act, California Civil Code section 52.1. (Compl. ¶¶ 19-22.)
Finally, Plaintiff's allegation in the preliminary section of his Complaint that "Defendant GARCIA exceeded the authority invested in him as a police officer under the U.S. Constitution . . ." is insufficient to create federal question jurisdiction. See Duncan, 76 F.3d at 1488 n.11 (holding plaintiff's incorporation by reference of a general allegation that she owned the trademark to "Footsie Wootsie" did not provide a basis for federal question jurisdiction since the alleged state law claim was not ...