The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
This action was removed from Sacramento County Superior Court on November 21, 2011 (dkt. no. 1) and has been referred to the undersigned pursuant to E.D. Cal. L.R. 302(c)(21). Presently pending before the court is plaintiff Bent Tree Holdings, LLC's ("Plaintiff") motion to remand the action to state court, noticed for hearing on January 26, 2012 at 10:00 a.m. (Dkt. Nos. 5, 9.) Defendant Jason Kyser ("Defendant") failed to file a timely opposition to the motion pursuant to E.D. Cal. L.R. 230(c).*fn1 Having reviewed the court's record in this matter, the court concludes that further briefing and oral argument would not be of material assistance in resolving the motion. Consequently, the January 26, 2012 hearing date will be vacated, and the motion will be decided on the record.
A state court defendant cannot invoke the federal court's original jurisdiction. However, the defendant may in some instances invoke the court's removal jurisdiction. Removal jurisdiction statutes are strictly construed against removal. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). "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). "The burden of establishing federal jurisdiction falls on the party invoking removal." Harris v. Provident Life and Accident Ins. Co., 26 F.3d 930, 932 (9th Cir. 1994).
A defendant may remove a civil action from state court to federal district court only if the district court has original jurisdiction over the action, i.e. if the action originally could have been filed in federal court. See 28 U.S.C. § 1441(a). A district court has original jurisdiction over a civil action when: (1) a federal question is presented in an action "arising under the Constitution, laws, or treaties of the United States" or (2) there is complete diversity of citizenship and the amount in controversy exceeds $75,000. 28 U.S.C. §§ 1331, 1332(a).
In regards to federal question jurisdiction, federal courts have "jurisdiction to hear, originally or by removal from a state court, only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action, or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983). Mere reference to federal law is insufficient to permit removal. See Smith v. Industrial Valley Title Ins. Co., 957 F.2d 90, 93 (3d Cir. 1992). Also, defenses and counterclaims cannot provide a sufficient basis to remove an action to federal court. See Berg v. Leason, 32 F.3d 422, 426 (9th Cir. 1994); Takeda v. Northwestern Nat. Life Ins. Co., 765 F.2d 815, 821-22 (9th Cir. 1985); FIA Card Servs. v. McComas, 2010 WL 4974113 (S.D. Cal. Dec. 2, 2010).
Here, removal cannot be based on federal question jurisdiction. The
exhibits attached to the removal notice establish that the state court
action is nothing more than a simple unlawful detainer action, and is
titled as such. (See Dkt. No. 1 at 6-7; see also Plaintiff's Request
for Judicial Notice, Dkt. No. 6 ["RJN"], Exs. A & B.)*fn2
Defendant is a tenant who occupies the subject property
pursuant to a rental agreement with Plaintiff. (RJN Ex. A at 1-2.)
Defendant allegedly failed to pay rent, resulting in the instant
action. (Id.) This court has no jurisdiction over unlawful detainer
actions, which are strictly within the province of the state court.
Furthermore, any defenses based on federal law or the United States
Constitution must generally be raised in the state court action and do
not provide a basis for removal. "A case may not be removed to federal
court on the basis of a federal defense,...even if the defense is
anticipated in the plaintiff's complaint, and even if both parties
admit that the defense is the only question truly at issue in the
case." ARCO Environmental Remediation, LLC v. Dept. of Health and
Environmental Quality of the State of Montana, 213 F.3d 1108, 1113
(9th Cir. 2000).
Nor can the action be removed on grounds of diversity jurisdiction. First, the amount in controversy does not exceed $75,000, because the state court action was filed as a limited civil case specifically seeking less than $10,000 (a year's lease at $819 per month). (Dkt. No. 1 at 6-7; RJN Ex. A.) Second, Defendant is a citizen of California, and therefore cannot remove the action from a California state court on the basis of diversity jurisdiction. See 28 U.S.C. § 1441(b) ("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.") Based on the aforementioned analysis, the court finds that remand is appropriate, because there is no subject matter jurisdiction.
Plaintiff also seeks an award of attorneys' fees, costs, and expenses in bringing its motion to remand. 28 U.S.C. § 1447(c) permits the court to order payment of "just costs and any actual expenses, including attorney fees, incurred as a result of the removal." In deciding whether to order payment of costs, the court must assess whether removal was "wrong as a matter of law." Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1106 n.6 (9th Cir. 2000). "Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal." Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).
Here, it is clear that there was no objectively reasonable basis for removal. The law of removal jurisdiction is well established. Although Defendant is proceeding pro se, the court notes that Defendant removed this action after a clerk's judgment by default on October 19, 2011 (RJN Ex. B) and issuance of a writ of possession of real property on November 15, 2011 (dkt. no. 1 at 10) in the state court. Thus, it is evident that Defendant removed the action on the eve of eviction solely to delay Plaintiff's recovery of its own property. Accordingly, the court will recommend that Plaintiff be awarded its reasonable fees and costs.
Plaintiff's counsel submitted a declaration indicating that he was admitted to practice law in California and the U.S. District Court for the Eastern District of California in 1978, and that his regular hourly rate is $250 per hour. (Dkt. No. 5 at 6.) He also stated that he spent approximately 3 hours to prepare the motion to remand, for a total of $750. (Id.) The court finds the hourly rate and number of hours spent to be reasonable and will therefore recommend that Plaintiff be awarded $750 in attorneys' fees.
Finally, defendant has also filed a motion to proceed in forma pauperis. (Dkt. No. 2.) Given the court's conclusion that it lacks subject matter jurisdiction in this matter, the request to proceed in forma pauperis will be denied.
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. Defendant's motion to proceed in forma pauperis (dkt. no. ...