IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 30, 2009
U.S. BANK NATIONAL ASSOCIATION, PLAINTIFF,
NICOLAS VAZQUEZ AND PETRA PENA, DEFENDANTS.
FINDINGS AND RECOMMENDATIONS
On August 21, 2009, defendants, proceeding pro se, filed a notice of removal of this unlawful detainer action from the Superior Court of the State of California for Sacramento County, and motions to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This case is before the undersigned in accordance with 28 U.S.C. § 636(b)(1) and Eastern District of California Local Rule 72-302(c)(21).
The court has an independent duty to ascertain its jurisdiction and may remand sua sponte for lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c). "The burden of establishing federal jurisdiction is on the party seeking removal, and the removal statute is strictly construed against removal jurisdiction." Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). "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). As explained below, defendants have failed to meet their burden.
Defendants' notice of removal is predicated upon the court's diversity jurisdiction. See 28 U.S.C. § 1332. Diversity jurisdiction requires complete diversity of citizenship among the parties, as well as a minimum amount in controversy of over $75,000. See 28 U.S.C. § 1332. Defendants' notice of removal fails to establish either of those requirements.
Although the notice of removal states that defendants "are private citizens living in Northern California," the notice does not identify defendants' citizenship and therefore does not establish that there is complete diversity among the parties.*fn1 Dckt. No. 1, at 3. Residence and citizenship are different things, see Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001), and allegations of residence are not sufficient allegations of citizenship for diversity jurisdiction. See Snell v. Cleveland, Inc., 316 F.3d 822, 824 (9th Cir. 2002).
The notice of removal also does not establish that the amount in controversy in this action exceeds $75,000. The notice of removal is silent as to the amount in controversy, and the complaint attached to the notice of removal specifically states that the "[a]mount demanded does not exceed $10,000." Dckt. No. 1, at 22. "Since 'it [was] not facially evident from the complaint that more than $75,000 [was] in controversy,' [defendants] should have 'prove[n], by a preponderance of the evidence, that the amount in controversy [met] the jurisdictional threshold.'" Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004) (quoting Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1909 (9th Cir. 2003)). Here, not only did defendants fail to submit proof that the $75,000 threshold is met, but they failed to even assert that it is. Therefore, they have not met their burden.
Because the defendants have not adequately established that there is complete diversity among the parties or that the amount in controversy exceeds $75,000, the court lacks subject matter jurisdiction and must remand the case.*fn2 See 28 U.S.C. § 1447(c).
Accordingly, IT IS RECOMMENDED that the above-captioned case be REMANDED to the Superior Court of the State of California in and for the County of Sacramento.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten (10) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten (10) days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).