United States District Court, E.D. California
ORDER DENYING DEFENDANT'S MOTION TO PROCEED IN FORMA PAUPERIS ORDER REMANDING THE MATTER TO KERN COUNTY SUPERIOR COURT
LAWRENCE J. O'NEILL, District Judge.
Nakysha Cummings ("Defendant") seeks removal of an unlawful detainer action filed by CenCal Capital, LLC ("Plaintiff") in Kern County Superior Court. (Doc. 1.) For the following reasons, Defendant's motion to proceed in forma pauperis is DENIED, and the action is REMANDED to Kern County Superior Court.
1. Procedural History
Plaintiff commenced this action by filing a summons and complaint for unlawful detainer against Nakysha Cummings and Reginal Gridiron on November 21, 2013, in Kern County Superior Court, Case No. S-1500-CL-281295. (Doc. 4.) Defendant filed a Notice of Removal of the action on March 18, 2014, thereby commencing the action in this court. (Doc. 1.) Defendant contends the Court has jurisdiction over the matter, and seeks to proceed with the removal in forma pauperis. (Doc. 2.)
II. Removal Jurisdiction
Pursuant to 28 U.S.C. § 1441(a), a defendant has the right to remove a matter to federal court where the district court would have original jurisdiction. Caterpillar, Inc. v. Williams, 482 U.S. 286, 392 (1987). Specifically,
Except otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
28 U.S.C. § 1441(a). District courts have "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Id. at § 1331.
A party seeking removal must file a notice of removal of a civil action within thirty days of receipt of a copy of the initial pleading. Id. at § 1446(b). Removal statutes are to be strictly construed, and any doubts are to be resolved in favor of state court jurisdiction and remand. See Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). The party seeking removal bears the burden of proving its propriety. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996); Abrego v. Dow Chem. Co., 443 F.3d 676, 683-85 (9th Cir. 2006); see also Calif. ex. rel. Lockyer v. Dynegy, Inc., 2274 F.3d 831, 838 ("the burden of establishing federal jurisdiction falls to the party invoking the statute"). If there is any doubt as to the right of removal, "federal jurisdiction must be rejected." Duncan, 76 F.3d at 1485.
The district court has "a duty to establish subject matter jurisdiction over [a] removed action sua sponte, whether the parties raised the issue or not." United Investors Life Ins. Co. v. Waddell & Reed, Inc., 360 F.3d 960, 967 (9th Cir. 2004); see also Kelton Arms Condo. Homeowners Ass'n v. Homestead Ins. Co., 346 F.3d 1190, 1192-93 (9th Cir. 2003) (noting a distinction between procedural and jurisdictional defects and holding that a "district court must remand if it lacks jurisdiction").
Consequently, the Sixth Circuit explained that a court "can, in fact must, dismiss a case when it determines that it lacks subject matter jurisdiction, whether or not a party has a filed a motion." Page v. City of Southfield, 45 F.3d 128, 133 (6th Cir. 1995).
III. Discussion and Analysis
As an initial matter, Defendant's Notice of Removal is procedurally defective. In cases involving multiple defendants, such as the current matter, the "rule of unanimity" requires that all defendants must join in a removal petition. Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381, 393 (1998) (citing Chicago, Rock Island, & Pacific Railway Co. v. Martin, 178 U.S. 245, 248 (1900)). One defendant's timely removal notice containing an averment of the other defendants' consent and signed by an attorney of record is sufficient. Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1225 (9th Cir. 2009). Here, Defendant fails to assert that her co-defendant Reginal Gridiron joins or consents to the removal.
Moreover, the Court lacks subject matter jurisdiction over the action. The determination of subject matter jurisdiction "is governed by the well-pleaded complaint rule, ' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar, 482 U.S. at 392. Therefore, the complaint must establish "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." Williston Basin Interstate Pipeline Co. v. An Exclusive ...