UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
August 10, 2011
RICHARD M. KIPPERMAN, COURT CUSTODIAN, PER U.S.B.C. SD OF CAL., PLAINTIFF,
LUXURY TOY CLUB LLC, A CALIFORNIA LIMITED LIABILITY COMPANY; AND DOES 1-10,
The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
ORDER GRANTING EX PARTE APPLICATION AND REMANDING ACTION TO STATE COURT [Doc. No. 2]
Plaintiff, RICHARD M KIPPERMAN, Court Custodian, per Order of the United States Bankruptcy Court, Southern District of California, Case No. 11-05973-B11 ("Plaintiff"), filed an Ex Parte Motion to Remand Unlawful Detainer Action to State Court ("Ex Parte Motion"), Doc. No. 2, on August 2, 2011. The Defendant, LUXURY TOY CLUB LLC, a California Limited Liability Company ("LTC" or "Defendant"), has not responded in any way to Plaintiff's Ex Parte Application.*fn1 For the reasons set forth below, the court hereby ORDERS the above captioned proceeding, Plaintiff's Unlawful Detainer action, be REMANDED to back to the San Diego Superior Court, Case No.37-2011-00045029- CL-CTL-UD for all further proceedings.
The Plaintiff is the court appointed Custodian*fn2 and Receiver*fn3 for La Jolla UTC Corporation ("LJ UTC") and therefore has possession of the commercial real property located at 1012 Prospect Street, Suites 300 and 310, La Jolla, California, 92037.
Suite 300 of the commercial real property is occupied by Defendant LUXURY TOY CLUB LLC, a California Limited Liability Company ("LTC" or "Defendant"). LTC is owned, operated, and controlled by Robert Mackey ("Mackey"). Suites 300 is a luxury suite in the subject building, overlooking an ocean front view. LTC entered into an eight (8) year lease with LJ UTC on or about February 2007, with a minimum monthly rent of $4,077.50, together with other charges designated in the lease ("LTC Lease"). While LTC has continued to enjoy the benefits of possession of this luxury suite, Plaintiff states that LTC has failed to pay the rent pursuant to its lease.
As a consequence, Plaintiff filed an unlawful detainer action against
the Defendant in the San Diego Superior Court on June 1,
2011.*fn4 Mackey appeared pro se for LTC,*fn5
by the filing a demur to the complaint. The demur was
scheduled for hearing in the San Diego Superior Court on July 27, 2011
at 1:30 pm . On the day before the hearing, LTC filed a notice of
removal on July 26, 2011 ("the Removal Notices").
The Defendant LTC, appearing pro se through its Chief Executive Officer Robert Mackey, argues in the notice of removal that the action is removable based on diversity jurisdiction. See Doc. # 1 at 2. Though not mentioned in the notice of removal, the Defendant may also intended to argue this Court has federal question jurisdiction, since that was indicated on the Civil Case Cover Sheet . See Doc. No. 1 at 3. Upon review of the record, however, the Court finds that this case is not suitable for removal on either federal question or diversity grounds.
The Defendant is seeking to invoke diversity jurisdiction under 28 U.S.C. § 1441(b), however, section1441(b) states that:
Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. 28 U.S.C. § 1441(b).
The Court notes that the Defendant has acknowledged being domiciled in California. As such, the removal notice clearly fails to satisfy minimum removal requirements. See Doc. No. 1 at 2. Although the Defendant claims damages exceeding $75,000.00,*fn6 the complaint alleges damages of less than $25,000.00, which is well below the $75,000.00 minimum amount in controversy required to invoke diversity jurisdiction. Any claim by Defendant for affirmative monetary relief may not be considered for the purposes of determining whether federal question jurisdiction exists. Rivert v. Regions Bank, 522 U.S. 470, 475 (1998). Furthermore, the removal statute clearly bars defendants who reside in the state where the action is filed to remove a state court action based solely on diversity jurisdiction where the record reflects no support for a finding that the minimum amount in controversy has been met.*fn7
While not set forth in Defendant's arguments in the notice of removal, the Defendant indicated Federal Question Jurisdiction as the basis for jurisdiction on the Civil Cover Sheet filed with this Court.
Doc. No. 1 at 3. However, since the complaint alleges only state law claims and the Defendant has failed to articulate any basis for federal question jurisdiction, the Court finds that Defendant has failed to satisfy section 1331. See 28 U.S.C. § 1331; Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986) (holding that in order for a state law claim to satisfy section 1331, it must be clear from the face of the plaintiff's complaint that a federal law creating a cause of action is an essential element of the state law claim).
For the reasons set forth above, IT IS HEREBY ORDERED that the Action is REMANDED to the San Diego Superior Court for all further proceedings.