UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 22, 2011
ITTLESON SJS HOTEL, LLC,
SJS PROPERTIES GROUP, LLC,
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER TO REMAND
On April 19, 2011, Defendant SJS Properties Group, LLC ("Defendant") removed this action from the Fresno County Superior Court of California. (Doc. 1.)
Pursuant to Title 28 of the United States Code section 1441(a), a defendant may remove an action to federal court if the district court has original jurisdiction. 28 U.S.C. § 1441(a); Hunter v. Phillip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (quoting Ansley v. Ameriquest Mortg. Co., 340 F.3d 858, 861 (9th Cir. 2003)). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. 28 U.S.C. § 1447(c). Generally, a defendant seeking to remove an action to federal court must file a Notice of Removal within thirty days of receiving a copy of the initial pleading. 28 U.S.C. § 1446(b). The defendant seeking removal of an action to federal court has the burden of establishing federal jurisdiction in the case. California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004).
Here, Defendant's removal notice challenges the purported service in the state court action, yet fails to reference any alleged date of service of process of the summons and complaint. (Doc. 1 at 3-4.) Defendant appended copies of the summons, civil case cover sheet, and complaint for unlawful detainer in Fresno County Superior Court case number 11CECG00078; those documents reflect only that the complaint was filed January 7, 2011. (Doc. 1 at 6-11.) Defendant filed its Notice of Removal on April 19, 2011. (Doc. 1.) Because Defendant fails to identify any purported date for service of process, defective or otherwise, it is impossible for this Court to determine from the notice itself whether the removal action is timely. Nevertheless, it appears the notice here is in fact untimely.
By Defendant's own reference to a "Complaint to action for Quiet Title/Lis Penden [sic]" filed in the United States District Court (see Doc. 1 at 4), this Court identified a separate action entitled Ittleson SJS Hotel LLC v. SJS Properties Group, 1:1-cv-00261 OWW SKO. The earlier matter involves the same parties as those involved in the instant matter. In the earlier-filed matter, the same Defendant filed a Notice of Removal on February 15, 2011. (See USDC-E 1:11-cv-261 Doc. 1.) A reasonable inference can thus be made that the notice of removal in this matter, involving the same underlying complaint and the same parties, is in fact untimely. For if the first notice was timely, this second notice must have been filed beyond the thirty day period as approximately sixty-three days have elapsed between February 15 and April 19, 2011.
Defendant is again attempting remove an unlawful detainer action based on federal question subject matter jurisdiction. (Doc. 1.) However, Defendant cannot establish jurisdiction that is proper. In fact, this Court has already explained that "[b]ecause the Complaint does not assert any claims arising under federal law, there is no federal question jurisdiction." (See USDC-E 1:11-cv-261 Doc. 9 at 5.) To reiterate, federal courts are courts of limited jurisdiction and lack inherent or general subject matter jurisdiction. Federal courts can adjudicate only those cases authorized by the United States Constitution and Congress. Generally, those cases involve diversity of citizenship or a federal question, or cases in which the United States is a party. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 114 S.Ct. 1673, 1677 (1994); Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003, 2008 (1989). Federal courts are presumptively without jurisdiction over civil actions. Kokkonen, 511 U.S. at 377. Lack of subject matter jurisdiction is never waived and may be raised by the Court sua sponte. Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). "Nothing is to be more jealously guarded by a court than its jurisdiction. Jurisdiction is what its power rests upon. Without jurisdiction it is nothing." In re Mooney, 841 F.2d 1003, 1006 (9th Cir. 1988).
In this case, Defendant is unable to establish subject matter jurisdiction before this Court because the complaint contains a single cause of action for unlawful detainer based on California Code of Civil Procedure section 1161a(b)(3). In determining the presence or absence of federal jurisdiction in removal cases, the "'well-pleaded complaint rule,' applies which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Plainly, Plaintiff's complaint raises only a state law claim.
Furthermore, the law is clear in the Ninth Circuit that the removal statute should be strictly construed in favor of remand and against removal. Harris v. Bankers Life and Cas. Co, 425 F.3d 689, 698 (9th Cir. 2005). The "strong presumption" against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper. Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712 n. 3 (9th Cir. 1990); 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, 980 F2d at 566. Here again, Defendant has not met its burden, and thus, remand is required.
A Note Regarding Representation
Additionally, the Court notes that Defendant SJS Properties Group, LLC, filed its Notice of Removal "In pro-per." (Doc. 1 at 1.) However, Defendant is advised that a "corporation may appear in the federal courts only through licensed counsel." Rowland v. California Men's Colony, 506 U.S. 194, 202, 113 S.Ct. 716, 721 (1993); United States v. High Country Broadcasting Co., Inc., 3 F.3d 1244, 1245 (9th Cir. 1993); see also Osborn v. President of Bank of United States, 9 Wheat. 738, 829, 6 L.Ed. 204 (1824); Turner v. American Bar Ass'n, 407 F.Supp. 451, 476 (N.D. Tex. 1975) (citing the "long line of cases" from 1824 to the present holding that a corporation may only be represented by licensed counsel). All artificial entities must appear in federal court through counsel. Rowland, 506 U.S. at 202. Additionally, this Court's Local Rule 183(a) provides: "A corporation or other entity may appear only by an attorney." Thus, even were removal proper for purposes of this Court's jurisdiction, Defendant SJS Properties Group, LLC, may not appear pro se in this Court.
More importantly, Defendant was previously advised of this procedural defect in the earlier-filed matter involving these same parties as well. (See USDC-E 1:11-cv-261 Doc. 9 at 3-4.)
CONCLUSION AND ORDER
Based on the above, this action is REMANDED sua sponte to the Fresno County Superior Court of California for all future proceedings. Defendant shall refrain from attempting to remove this same action to this Court in the future. Accordingly, the Clerk of the Court is directed to remand the matter to the Fresno County Superior Court and to close this case.
IT IS SO ORDERED.
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