United States District Court, C.D. California
Antonio De Freitas, Plaintiff, represented by Paulo Isidro
Menezes, Law Offices of Duarte and Menezes LLP.
Cervantes, Defendant, Pro Se.
ORDER REMANDING CASE TO STATE COURT
STEPHEN V. WILSON, District Judge.
Court sua sponte REMANDS this action to the California
Superior Court for the County of Los Angeles for lack of
subject matter jurisdiction, as set forth below.
right of removal is entirely a creature of statute and a suit
commenced in a state court must remain there until cause is
shown for its transfer under some act of Congress.'"
Syngenta Crop Protection, Inc. v. Henson, 537 U.S.
28, 32 (2002) (quoting Great Northern R. Co. v.
Alexander, 246 U.S. 276, 280 (1918)). Where Congress has
acted to create a right of removal, those statutes are
strictly construed against removal jurisdiction. Id
.; Nevada v. Bank of America Corp., 672 F.3d 661,
667 (9th Cir. 2012); Gaus v. Miles, Inc., 980 F.2d
564, 566 (9th Cir. 1992).
otherwise expressly provided by Congress, a defendant may
remove "any civil action brought in a State court of
which the district courts of the United States have original
jurisdiction." 28 U.S.C. Â§ 1441(a); Dennis v.
Hart, 724 F.3d 1249, 1252 (9th Cir. 2013). The removing
defendant bears the burden of establishing federal
jurisdiction. Abrego Abrego v. Dow Chemical Co., 443
F.3d 676, 682 (9th Cir. 2006); Gaus, 980 F.2d at
566-67. "Under the plain terms of Â§ 1441(a), in order
properly to remove [an] action pursuant to that provision,
[the removing defendant] must demonstrate that original
subject-matter jurisdiction lies in the federal courts."
Syngenta Crop Protection, 537 U.S. at 33. Failure to
do so requires that the case be remanded, as "[s]ubject
matter jurisdiction may not be waived, and... the district
court must remand if it lacks jurisdiction." Kelton
Arms Condo. Owners Ass'n v. Homestead Ins. Co., 346
F.3d 1190, 1192 (9th Cir. 2003). "If at any time before
final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be
remanded." 28 U.S.C. Â§ 1447(c). It is "elementary
that the subject matter jurisdiction of the district court is
not a waivable matter and may be raised at anytime by one of
the parties, by motion or in the responsive pleadings, or
sua sponte by the trial or reviewing court."
Emrich v. Touche Ross & Co., 846 F.2d 1190, 1194 n.2
(9th Cir. 1988).
review of the Notice of Removal and the state court records
provided, it is evident that the Court lacks subject matter
jurisdiction over the instant case, for the following
No basis for federal question jurisdiction has been
[✓] The Complaint does not include any claim
"arising under the Constitution, laws, or treaties of
the United States." 28 U.S.C. Â§ 1331.
[✓] Removing defendant(s) asserts that the affirmative
defenses at issue give rise to federal question jurisdiction,
but "the existence of federal jurisdiction depends
solely on the plaintiff's claims for relief and not on
anticipated defenses to those claims." ARCO Envtl.
Remediation, L.L.C. v. Dept. of Health and Envtl.
Quality, 213 F.3d 1108, 1113 (9th Cir. 2000). An
"affirmative defense based on federal law" does not
"render[ ] an action brought in state court
removable." Berg v. Leason, 32 F.3d 422, 426
(9th Cir. 1994). 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." Franchise Tax
Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1,
[✓] The underlying action is an unlawful detainer
proceeding, arising under and governed by the laws of the
State of California.
Diversity jurisdiction is lacking;
[✓] Every defendant is not alleged to be diverse from
every plaintiff. 28 U.S.C. Â§ 1332(a).
[✓] The Complaint does not allege damages in excess of
$75, 000, and removing defendant(s) has not plausibly alleged
that the amount in controversy requirement has been met.
Id .; see Dart Cherokee Basin Operating Co., LLC
v. Owens, ...