United States District Court, S.D. California
ORDER (1) GRANTING MOTION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS; AND (2) REMANDING ACTION FOR LACK OF SUBJECT
MATTER JURISDICTION [ECF No. 2]
Cynthia Bashant United States District Judge
13, 2016, Defendant Gerard Furlong ("Defendant")
removed this matter to federal court pursuant to 28 U.S.C.
§§ 1441 & 1446 based on federal question
jurisdiction under 28 U.S.C. § 1331. (ECF No. 1.) On the
same day, Defendant also filed a motion seeking leave to
proceed in forma pauperis ("IFP"). (ECF
28 U.S.C. § 1915, a litigant who because of indigency is
unable to pay the required fees or security to commence a
legal action may petition the court to proceed without making
such payment. The determination of indigency falls within the
district court's discretion. Cal. Men's Colony v.
Rowland, 939 F.2d 854, 858 (9th Cir. 1991),
rev'd on other grounds, 506 U.S. 194 (1993)
(holding that "Section 1915 typically requires the
reviewing court to exercise its sound discretion in
determining whether the affiant has satisfied the
statute's requirement of indigency"). Having read
and considered Defendant's application, the Court finds
that Defendant meets the requirements for IFP status under 28
U.S.C. § 1915. Accordingly, the Court GRANTS
Defendant's motion to proceed IFP (ECF No. 2).
the Court finds Defendant meets the requirements for IFP
status, this determination does not mean that Defendant may
defend this action in federal court. "Federal courts are
courts of limited jurisdiction." Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
"They possess only that power authorized by Constitution
and statute, which is not to be expanded by judicial
decree." Id. (internal citations omitted).
"It is to be presumed that a cause lies outside this
limited jurisdiction, and the burden of establishing the
contrary rests upon the party asserting jurisdiction."
Id. (internal citations omitted); see also
Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 684
(9th Cir. 2006).
with the limited jurisdiction of federal courts, the removal
statute is strictly construed against removal jurisdiction.
Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.
1992); see also Sygenta Crop Prot. v. Henson, 537
U.S. 28, 32 (2002); O'Halloran v. Univ. of
Wash., 856 F.2d 1375, 1380 (9th Cir. 1988). "The
‘strong presumption' against removal jurisdiction
means that the defendant always has the burden of
establishing that removal is proper." Gaus, 980
F.2d at 566; see also Nishimoto v. Federman-Bachrach &
Assoc., 903 F.2d 709, 712 n.3 (9th Cir. 1990);
O'Halloran, 856 F.2d at 1380. "Federal
jurisdiction must be rejected if there is any doubt as to the
right of removal in the first instance." Gaus,
980 F.2d at 566.
well-established that "a district court's duty to
establish subject matter jurisdiction is not contingent upon
the parties' arguments." See United Investors
Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 966
(9th Cir. 2004). Courts may consider the issue sua
sponte. Demery v. Kupperman, 735 F.2d 1139,
1149 n.8 (9th Cir. 1984). Indeed, the Supreme Court has
emphasized that "district courts have an
‘independent obligation to address subject-matter
jurisdiction sua sponte.'" Grupo
Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 593
(2004) (quoting United States v. S. Cal. Edison Co.,
300 F.Supp.2d 964, 972 (E.D. Cal. 2004)).
Defendant seeks to remove this action from state court based
upon federal question jurisdiction under 28 U.S.C. §
1331. Section 1331 provides that "district courts shall
have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United
States." "[T]he presence or absence of
federal-question 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." Rivet v. Regions Bank of La., 522
U.S. 470, 475 (1998) (quoting Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987)). A federal
"defense is not part of a plaintiff's properly
pleaded statement of his or her claim." Id.
(citing Metropolitan Life Ins. Co. v. Taylor, 481
U.S. 58, (1987)). A case, therefore, may not be removed to
federal court based on 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. of State of Cal. v. Constr. Laborers Vacation Trust for
S. Cal., 463 U.S. 1, 14 (1983); see also Rivet,
522 U.S. at 475.
case removed here is a residential unlawful detainer action.
(Complaint - Unlawful Detainer, Notice of Removal Ex. A, ECF
No. 1-2.) It contains one cause of action for unlawful
detainer brought pursuant to California Code of Civil
Procedure Section 1161(2). (Id.) Therefore, the
action arises exclusively under California state law.
Defendant argues in his notice of removal that federal
question jurisdiction exists because "Defendant withheld
rent due to Plaintiff discriminating against defendant by
violating [the] Fair Housing Act and 42 U.S.C. [§]
3604(f)(3)(A)" and other federal housing discrimination
statutes. (See Notice of Removal ¶¶ 5-7,
ECF No. 1.) Yet, because the only possible federal issues in
this case involve a defense invoked by Defendant, federal
question jurisdiction is lacking under the well-pleaded
complaint rule. See Rivet, 522 U.S. at 475; see
also, e.g., Wells Fargo Bank NA v. Zimmerman,
No. 2:15-cv-08268-CAS-MRWx, 2015 WL 6948576, at *4 (CD. Cal.
Nov. 10, 2015) (remanding unlawful detainer action to state
court); McGee v. Seagraves, No.
06-CV-0495-MCE-GGH-PS, 2006 WL 2014142, at *3 (E.D. Cal. July
17, 2006) (same).
Defendant has failed to meet his burden of establishing this
Court's jurisdiction under 28 U.S.C. § 1331.
Therefore, this Court REMANDS this action to the San Diego
Superior Court for lack of subject matter jurisdiction.
See 28 U.S.C. § 1447(c) ("If at any time
before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be
addition, the Court warns Defendant that any further attempt
to remove this action without an "objectively reasonable
basis for removal" may result in an award of
attorneys' fees for Plaintiff. See Martin v.
Franklin Capital Corp.,546 U.S. 132, 136 (2005); 28
U.S.C. § 1447(c); see also Wells Fargo Bank Nat.
Ass'n v. Vann, No. 13- cv -01148-YGR, 2013 WL
1856711, at *2 (ND. Cal. May 2, 2013) (awarding $5, 000.00 in
attorneys' fees pursuant to 28 U.S.C. § 1447(c)