United States District Court, C.D. California
Jones, Plaintiff, Pro Se.
Terrance Gaines, Defendant, Pro Se.
ORDER REMANDING CASE TO STATE COURT
GARY KLAUSNER, 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 Corp Protection, Inc. v. Henson, 537 U.S.
28, 32 (2002) (quoting Great Northern R. Co. v.
Alenxander, 246 U.S. 276, 280 (1918)). Where Congress
has acted to create a right of removal, those statutes are
strictly construed against remnoval 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 court."
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 remanded if it lacks jurisdiction."
Kelton Arms Condo. Owner's Ass'n v. Homestead
Ins. Co., 346 F.3d 1190, 1192 (9th Cri. 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 "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
[x] No basis for federal question jurisdiction has been
[x] The Complaint does not include any claim "arising
under the Constitution, laws, or treaties of the United
States." 28 U.S.C. Â§ 1331.
[x] 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,
[x] The underlying action is an unlawful detainer proceeding,
arising under and governed by the laws of the State of
[x] No basis for Removal under 28 U.S.C. Â§ 1443(1).
Defendant asserts that he has performed a "civil rights
removal" pursuant to 28 U.S.C. Â§ 1443(1). "A
petition for removal under Â§ 1443(1) must satisfy the
two-part test articulated by the Supreme Court in Georgia
v. Rachel, 384 U.S. 780, 788-92, 794-804 (1966) and
City of Greenwood, Miss. v. Peacock, 384 U.S. 808,
824-28 (1966). First, the petitioners must assert, as a
defense to the prosecution, rights that are given to them by
explicit statutory enactment protecting equal racial civil
rights.' California v. Sandoval, 434 F.2d 635,
636 (9th Cir.1970). Second, petitioners must assert that the
state courts will not enforce that right, and that allegation
must be supported by reference to a state statute or a
constitutional provision that purports to command the state
courts to ignore the federal rights.' Id. "
Patel v. Del Taco, Inc., 446 F.3d 996, 998-99 (9th
Whether or not Defendant's petition for removal satisfies
the first part of the Â§ 1443(1) removal test, it clearly does
not satisfy the second Like the removing defendants in
Patel, he "point[s] to no formal expression of
state law that prohibits [him] from enforcing [his] civil
rights in state court[, ] nor do[es] [he] point to anything
that suggests that the state court ...