United States District Court, N.D. California
ORDER GRANTING MOTION TO REMAND
PHYLLIS J. HAMILTON, District Judge.
This case was removed from the Superior Court of California, County of San Mateo, on April 3, 2015. The court has reviewed the notice of removal and the state court complaint, the motion to remand filed by plaintiff Moab Investment Group, and the opposition filed by Mary T. Neumeyer, and finds that the case must be remanded for lack of subject matter jurisdiction.
Subject matter jurisdiction is fundamental and cannot be waived. Billingsly v. C.I.R. , 868 F.2d 1081, 1085 (9th Cir. 1989). Federal courts can adjudicate only those cases which the Constitution and Congress authorize them to adjudicate - those involving diversity of citizenship or a federal question, or those to which the United States is a party. Kokkonen v. Guardian Life Ins. Co. of America , 511 U.S. 375, 377 (1994); see also Chen-Cheng Wang ex rel. United States v. FMC Corp. , 975 F.2d 1412, 1415 (9th Cir. 1992) (federal courts have no power to consider claims for which they lack subject-matter jurisdiction).
A defendant may remove a civil action filed in state court if the action could have originally been filed in federal court. 28 U.S.C. § 1441. The removal statutes are construed restrictively, however, so as to limit removal jurisdiction. Shamrock Oil & Gas Corp. v. Sheets , 313 U.S. 100, 108-09 (1941); see also Matheson v. Progressive Specialty Ins. Co. , 319 F.3d 1089, 1090 (9th Cir. 2003).
The burden of establishing federal jurisdiction for purposes of removal is on the party seeking removal. Valdez v. Allstate Ins. Co. , 372 F.3d 1115, 1117 (9th Cir. 2004). The district court must remand the case if it appears before final judgment that the court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c); Albingia Versicherungs A.G. v. Schenker Int'l, Inc. , 344 F.3d 931, 936 (9th Cir. 2003).
Subject matter jurisdiction is determined from the face of the complaint. Toumajian v. Frailey , 135 F.3d 648, 653 n.2 (9th Cir. 1998) ("[f]or removal to be appropriate, a federal question must appear on the face of the complaint"); see also Caterpillar Inc. v. Williams , 482 U.S. 386, 392 (1987) (federal question must be presented on face of plaintiff's properly pleaded complaint); Fifty Assocs. v. Prudential Ins. Co. of Am. , 446 F.2d 1187, 1189-90 (9th Cir. 1970) (existence of diversity jurisdiction must be sufficient on the face of the complaint). Jurisdiction may not be based on a claim raised as a defense or a counterclaim. K2 America Corp. v. Roland Oil & Gas, LLC , 653 F.3d 1024, 1029 (9th Cir. 2011).
The complaint at issue was filed in San Mateo County Superior Court by plaintiff Moab Investment Group LLC on October 31, 2014. The complaint alleges a single cause of action under state law for unlawful detainer. See Dkt. 1, Ex. 1. Although the complaint named only Mary Neumeyer as a defendant, a notice of removal was filed by Mary T. Neumeyer and Walter Neumeyer ("the Removing parties").
The notice of removal suffers from a lack of clarity, but appears to claim that the court has federal question jurisdiction over the case, stating that: "The grounds for such removal is being bases on claims arising under' federal law. Namely, as to federal jurisdiction resulting from the moving party's application to identify the statutory basis for the claims." Dkt. 1 at 1. The notice then presents a list of "federal questions posed":
1) Why did Trustee fail to provide notice of copy of sell to the Internal Revenue Service pursuant to IRC Code 7425?
2) Why did Trustee fail to comply with code of federal regulation (CFR § 27.15) Housing and Urban Development (non-judicial foreclosure single family)?
3) Why did Trustee engage in prohibited transaction pursuant to IRC 4.72.11?
4) Why is Trustee not listed on the list of nonbank Trustees Approved dated April 1, 2014?
Dkt. 1 at 2.
The notice of removal also claims that "the amount in controversy exceeds $75, 000, " but there is no other indication that the removing parties are claiming diversity jurisdiction, especially since they admit in the notice that their ...