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R.W. Zukin Corporation v. Ortiz

United States District Court, N.D. California, San Jose Division

June 18, 2015

R.W. ZUKIN CORPORATION, Plaintiff,
v.
ALEX R. ORTIZ, Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION, REMANDING CASE TO STATE COURT, AND DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS [Re: Docket Nos. 2, 5]

RONALD M. WHYTE, District Judge.

On April 17, 2015 plaintiff R. W. Zukin Corp. (Zukin) filed a complaint alleging an unlawful detainer cause of action against defendant Alex Ortiz in the Superior Court of California, County of Monterey. Dkt. No. 1-1 at 12. Defendant Ortiz subsequently removed the action to federal court on May 15, 2015. Id. at 1. On May 15, 2015 defendant Ortiz filed a motion for leave to proceed in forma pauperis. On May 18, 2015 the magistrate judge ordered the defendant to show cause in writing why removal is proper to this district. Dkt. No. 4. Defendant failed to respond. Defendant also failed to comply with the magistrate judge's order to consent to or decline his jurisdiction. Id. On May 29, 2015 the magistrate judge referred this case for reassignment to a district court judge. Dkt. No. 6. The magistrate judge also issued a recommendation that the court remand the action to state court for lack of subject matter jurisdiction. Id. The case is now before the undersigned.

Having reviewed the magistrate judge's recommendation, the court adopts the magistrate judge's recommendation in full.

The court has neither diversity jurisdiction nor federal question jurisdiction over this case. The parties are not diverse. Plaintiff is a California corporation, and defendant Ortiz is a citizen of California for jurisdictional purposes since California has been his state of domicile. Dkt. No. 1-1 at 13; Redner v. Sanders, No. 99-CV-9306-TPG, 2000 WL 1161080 (S.D.N.Y. Aug. 16, 2009). Diversity jurisdiction also requires an amount in controversy in excess of $75, 000. 28 U.S.C. § 1332(a). On its face, the complaint indicates that the amount demanded does not exceed $10, 000. Dkt. No. 1-1 at 12.

Additionally, the court also lacks federal question jurisdiction. The complaint alleges a state cause of action for unlawful detainer, and states no federal claim. Although defendant Ortiz alleges in his notice of removal that Zukin did not comply with 42 U.S.C. § 1983, this is his defense to the unlawful detainer action, and therefore is insufficient as a basis for removal. Vaden v. Discovery Bank, 556 U.S. 49, 60 (2009) ("federal jurisdiction cannot be predicated on an actual or anticipated defense... [n]or can federal jurisdiction rest upon an actual or anticipated counterclaim.").

Because the court lacks jurisdiction over plaintiff's claim, the court hereby REMANDS the case to the Monterey County Superior Court.

Because the case is hereby remanded to state court and no further proceeding before this court is necessary, the motion for leave to proceed in forma pauperis is DENIED as moot.


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