The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER TO REMAND (Document 2)
ORDER REGARDING APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES (Document 3)
On May 11, 2011, Defendant Reynaldo Ortega removed this action
from the Kern County Superior Court of California. *fn1
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. 2 at 2-3.)
Defendant appended a copy of the verified complaint for unlawful
detainer in Kern County Superior Court case number S-1500-CL-254287;
that document reflects only that the verified complaint was filed on
or about November 3, 2010. (Doc. 2 at 8-11.) Defendant filed his
Notice of Removal on May 11, 2011. (Doc. 2.) 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. *fn2
Nevertheless, although timeliness is unclear, for
purposes of discussion only, the Court will turn to address the issue
Defendant is attempting remove an unlawful detainer action based on federal question subject matter jurisdiction. (Doc. 2.) However, Defendant cannot establish jurisdiction that is proper. 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).
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.
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). Unlawful detainer actions are strictly within the province of state court. Defendant's attempt at creating federal subject matter jurisdiction by adding claims or defenses to a petition or notice of removal will not succeed. See Catee v. Capital One, F.S.B. , 479 F.3d 1143, 1145 (9th Cir. 2007) (even previously asserted counterclaims raising federal issue will not permit removal).
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. Moreover, "it is well established that plaintiff is the 'master of her complaint' and can plead to avoid federal jurisdiction." Lowdermilk v. U.S. Bank Nat'l Ass'n , 479 F.3d 994, 997-98 (9th Cir. 2007); Metropolitan Life Ins. Co. v. Taylor , 481 U.S. 58, 63 (1987) (citing Gully v. First Nat'l Bank , 299 U.S. 109 (1936)) ("It is long settled law that a cause of action arises under federal law only when the plaintiff's well-pleaded complaint raises issues of federal law").
Finally, despite Defendant's assertion that federal question
subject matter jurisdiction exists based upon his assertion that
Plaintiff Federal National Mortgage Association is a "federal
corporation" or "federal agency" or that the United States is a real
party in interest (Doc. 2 at 2-4), he is mistaken. While courts are
split over whether Fannie Mae's *fn3 charter
confers federal jurisdiction, courts in the Eastern District have
concluded that there must be an independent basis of jurisdiction
because the language in the charter includes the phrase "any court of
competent jurisdiction" and courts have declined to construe that
language as creating a grant ...