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D & A Intermediate-Term Mortgage Fund III LP v. Ian Anthony Suite

United States District Court, C.D. California

February 9, 2017

D & A INTERMEDIATE-TERM MORTGAGE FUND III LP, Plaintiff,
v.
IAN ANTHONY SUITE, DOES 1 to 10, INCLUSIVE Defendants.

          ORDER REMANDING TO STATE COURT

          ANDREW J. GUILFORD, UNITED STATES DISTRICT JUDGE

         I. BACKGROUND

         On July 26, 2016, Plaintiff filed an unlawful detainer action against Defendants in the Orange County Superior Court. (Notice of Removal, Ex. 1 [state court complaint.]) On January 2, 2017, Defendant Ian Anthony Suite filed a Notice of Removal of that action in this Court, accompanied by a request to proceed in forma pauperis (“IFP”). See D & A Intermediate-Term Mortgage Fund III LP v. Ian Anthony Suite, et al., 8:17-sacv-00003-DOC-KESx. Defendant Suite's request for IFP was denied and the matter remanded to state court on January 5, 2017. (Id. at Dkts. 6, 7.)

         On February 7, 2017, Michael Anthony Garcia, an interested party in the same unlawful detainer action, filed the Notice of Removal and IFP request now before this Court.[1] Mr. Garcia contends that he is a defendant in this case, and that “Plaintiff failed to contact Defendant [Garcia] to work out any agreement and filed an Unlawful Detainer case against Defendant [Suite] excluding Defendant [Garcia] from the law suit under deceit.” (Notice of Removal at 5.)

         Mr. Garcia alleges that removal is proper under federal question jurisdiction because Plaintiff violated the federal Protecting Tenants at Foreclosure Act. (Id. at 1-3.) Alternatively, he contends that removal is proper under 28 U.S.C. § 1443 because he has been deprived of his constitutional rights by the application of California statutory provisions authorizing evictions in unlawful detainer proceedings. (Id. at 7.) Defendant, in conclusory language, also lists the First, Fifth, Ninth, and Fourteenth Amendments, “the Article I guarantee against state ‘impairment of the obligations of contract, ” and 42 U.S.C. §§ 1981, 1982, 1983, and 1985 in support of federal jurisdiction. (Id. at 8-9.)

         The Court sua sponte REMANDS this action to the California Superior Court for the County of Orange for lack of subject matter jurisdiction, as set forth below.

         II. DISCUSSION

         “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 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 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 v. Dow Chemical 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 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. § 1447(c). It is “elementary that the subject matter jurisdiction of the district court is not a waivable matter and may be raised at any time 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).

         A. Federal Question Jurisdiction.

         The underlying action is an unlawful detainer proceeding, arising under and governed by the laws of the State of California. The state-court Complaint does not include any claim “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Federal defenses or federal counterclaims do not provide a basis to remove an action which does not otherwise establish federal jurisdiction. “[T]he 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, 14 (1983). There is no basis for federal question jurisdiction.

         B. Diversity Jurisdiction.

         There is also no basis for diversity jurisdiction. Every defendant is not alleged to be diverse from every plaintiff. 28 U.S.C. § 1332(a). The Complaint does not allege damages in excess of $75, 000; to the contrary, it is a limited civil action in which the amount in controversy does not exceed $10, 000.

         C. Jurisdiction under 28 ...


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