United States District Court, C.D. California
LA
Park La Brea B LLC, Plaintiff, represented by Chris J Evans,
Kimball Tirey and St John LLP.
Antoinette Judkins, Defendant, Pro Se.
ORDER REMANDING CASE TO STATE COURT
ANDRE
BIROTTE Jr., District Judge.
The
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.
"The
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 Prot., Inc. v. Henson, 537 U.S. 28, 32
(2002) (quoting Great N. Ry. Co. v. Alexander, 246
U.S. 276, 280 (1918)). Generally, where Congress has acted to
create a right of removal, those statutes are strictly
construed against removal jurisdiction. Id .;
Nevada v. Bank of Am. Corp., 672 F.3d 661, 667 (9th
Cir. 2012); Gaus v. Miles, Inc., 980 F.2d 564, 566
(9th Cir. 1992).
Unless
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. § 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 Chem. Co., 443
F.3d 676, 682 (9th Cir. 2006); Gaus, 980 F.2d at
566-67. "Under the plain terms of § 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 Prot., 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. § 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).
From a
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
reasons.
[✓]
No basis for federal question jurisdiction has been
identified:
[✓] The Complaint does not include any claim
"arising under the Constitution, laws, or treaties of
the United States." 28 U.S.C. § 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. Constr. Laborers Vacation Tr., 463 U.S. 1, 14
(1983).
[✓] Removing defendant(s) has not alleged facts
sufficient to show that the requirements for removal under 28
U.S.C. § 1443 are satisfied. Section 1443(1) provides for the
removal of a civil action filed "[a]gainst any person
who is denied or cannot enforce in the courts of such State a
right under any law providing for the equal civil rights of
citizens of the United States...." Even assuming that
the removing defendant(s) has asserted rights provided
"by explicit statutory enactment protecting equal racial
civil rights, " Patel v. Del Taco, Inc., 446
F.3d 996, 999 (9th Cir. 2006) (citation omitted),
defendant(s) has not identified any "state statute or a
constitutional provision that purports to command the state
courts to ignore the federal rights" or pointed "to
anything that suggests that the state court would not enforce
[defendant's] civil rights in the state court
proceedings." Id . (citation omitted); see also
Bogart v. California, 355 F.2d 377, 381-82 (9th Cir.
1966) (holding that conclusionary statements lacking any
factual basis cannot support removal under § 1443(1)). Nor
does § 1443(2) provide any basis for removal, as it
"confers a privilege of removal only upon federal
officers or agents and those authorized to act with or for
them in affirmatively executing duties under any federal law
providing for equal civil rights" and on state officers
who refuse to enforce discriminatory state laws. City of
Greenwood v. Peacock, 384 U.S. 808, 824 & 824 n.22
(1966).
[✓] The underlying action is an unlawful detainer
proceeding, arising under and governed by the laws of the
State of California.
[ ] Removing defendant(s) claims that 28 U.S.C. § 1334
confers jurisdiction on this Court, but the underlying action
does not arise under Title 11 of the United States Code.
[✓]
Diversity jurisdiction is lacking, and/or this case is not
...