United States District Court, E.D. California
ORDER SUA SPONTE REMANDING MATTER TO THE TULARE
COUNTY SUPERIOR COURT AND ORDER DENYING MOTION TO PROCEED IN
FORMA PAUPERIS AS MOOT (DOC. NO. 3)
Rigoberto Morfin (“Defendant”) removed this
unlawful detainer case from the Superior Court of Tulare
County on March 15, 2017. See Court's Docket
Doc. No. 1. Although not entirely clear, Defendant appears to
assert that the bases for removal are: the application of 28
U.S.C. § 1443, his recent discoveries of federal
interests that are implicated by the “trust deed
loan” and hedge fund practices, his Fifth and
Fourteenth Amendment Due Process interests and protections in
his home, and the protections of the California Homeowner
Bill of Rights.
district court has “a duty to establish subject matter
jurisdiction over the removed action sua sponte,
whether the parties raised the issue or not.”
United Investors Life Ins. Co. v. Waddell & Reed,
Inc., 360 F.3d 960, 967 (9th Cir. 2004). The removal
statute (28 U.S.C. § 1441) is strictly construed against
removal jurisdiction. Geographic Expeditions, Inc. v.
Estate of Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010);
Provincial Gov't of Marinduque v. Placer Dome,
Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). It is
presumed that a case lies outside the limited jurisdiction of
the federal courts, and the burden of establishing the
contrary rests upon the party asserting jurisdiction.
Geographic Expeditions, 599 F.3d at 1106-07;
Hunter v. Philip Morris USA, 582 F.3d 1039, 1042
(9th Cir. 2009). “The strong presumption against
removal jurisdiction” means that “the court
resolves all ambiguity in favor of remand to state
court.” Hunter, 582 F.3d at 1042; Gaus v.
Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). That is,
federal jurisdiction over a removed case “must be
rejected if there is any doubt as to the right of removal in
the first instance.” Geographic Expeditions,
599 F.3d at 1107; Duncan v. Stuetzle, 76 F.3d 1480,
1485 (9th Cir. 1996); Gaus, 980 F.2d at 566.
“If at any time prior to judgment it appears that the
district court lacks subject matter jurisdiction, the case
shall be remanded.” 28 U.S.C. § 1447(c);
Gibson v. Chrysler Corp., 261 F.3d 927, 932 (9th
Cir. 2001). Remand under 28 U.S.C. § 1447(c) “is
mandatory, not discretionary.” Bruns v. NCUA,
122 F.3d 1251, 1257 (9th Cir. 1997); see California ex.
rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th
Cir. 2004). That is, the court “must dismiss a case
when it determines that it lacks subject matter jurisdiction,
whether or not a party has filed a motion.” Page v.
City of Southfield, 45 F.3d 128, 133 (6th Cir. 1995).
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.”
California v. United States, 215 F.3d 1005, 1014
(9th Cir. 2000); see Dynegy, 375 F.3d at 838;
Duncan, 76 F.3d at 1485. Under the
“well-pleaded complaint” rule, courts look to
what “necessarily appears in the plaintiff's
statement of his own claim in the bill or declaration,
unaided by anything in anticipation of avoidance of defenses
which it is thought the defendant may interpose.”
California, 215 F.3d at 1014. Accordingly, “a
case may not be removed on the basis of a federal defense . .
. even if the defense is anticipated in the plaintiff's
complaint and both parties concede that the federal defense
is the only question truly at issue.” Caterpillar,
Inc. v. Williams, 482 U.S. 386, 392 (1987); Wayne v.
DHL Worldwide Express, 294 F.3d 1179, 1183 (9th Cir.
2002); see also Vaden v. Discover Bank, 556 U.S. 49,
70 (2009) (“It does not suffice to show that a federal
question lurks somewhere inside the parties' controversy,
or that a defense or counterclaim would arise under federal
Defendant has not shown that removal was appropriate. The
complaint filed by Plaintiff is an unlawful detainer action
that is based entirely on state law.
the bases that Defendant appears to identify are sufficient
to confer federal question jurisdiction. First, to the extent
that Plaintiff relies on the California Homeowner Bill of
Rights, that is a California state law, not a federal law.
Because it is not a federal law, it cannot serve as the basis
for federal question jurisdiction. See 28 U.S.C.
§ 1331 (“The district courts have original
jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United
States.” (emphasis added)).
Defendant's references to the Fifth Amendment, Fourteenth
Amendment, and unidentified “federal banking
laws” are issues that are not found on the face of
Plaintiff's complaint. It appears that Defendant is
raising these issues either defensively or suggesting that he
may have a counterclaim. However, defenses and counterclaims
do not serve as a basis for federal question jurisdiction.
See Vaden, 556 U.S. at 70; Caterpillar, 482
U.S. at 392.
Plaintiff has not demonstrated that 28 U.S.C. § 1443(1)
applies to this case. A petition for removal under §
1443(1) must satisfy a two-part test: (1) the removing party
must assert, as a defense to the prosecution, rights that are
given to him by explicit statutory enactment protecting equal
racial civil rights; and (2) the removing party 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. Patel v. Del
Taco, Inc., 446 F.3d 996, 998-99 (9th Cir. 2006);
California v. Sandoval, 434 F.2d 635, 636 (9th Cir.
1970). Defendant does not meet either of these conditions.
Defendant did not identify an “explicit statutory
enactment protecting equal racial civil rights.”
Second, Defendant identifies no state statute or state
constitutional provision that commands California state
courts to ignore his federal racial civil rights. Defendant
describes his dissatisfaction with the actions of the Tulare
County Superior Court and the unlawful detainer practices in
California, but that is not enough. See Sandoval,
434 F.2d at 636; Doe v. Guzman, 2015 U.S. Dist.
LEXIS 121596, *6 (E.D. Cal. Sept. 11, 2015); Essex Mgmt.
Corp. v. White, 2015 U.S. Dist. LEXIS 14180, *1-*2 (S.D.
Cal. Feb. 5, 2015).
there is no federal question appearing in Plaintiffs
complaint, Defendant has failed to invoke this Court's
jurisdiction. Remand to the Tulare County Superior Court is
appropriate and mandatory. 28 U.S.C. § 1447(c);
Geographic Expeditions, 599 F.3d at 1107;
Bruns. 122 F.3d at 1257; Page. 45 F.3d at
133; Doe, 2015 U.S. Dist. LEXIS 121596 at *7;); Essex
Mgmt. 2015 U.S. Dist. LEXIS 14180 at *3.
IT IS HEREBY ORDERED that:
1. Per 28 U.S.C. § 1447(c), due to this Court's lack
of subject matter jurisdiction, this case is REMANDED
forthwith to the Superior Court of Tulare County; and
2. Plaintiffs motion to proceed in forma pauperis is
DENIED as moot.