United States District Court, N.D. California
ORDER REASSIGNING CASE TO A DISTRICT JUDGE; REPORT
AND RECOMMENDATION TO REMAND TO STATE COURT; ORDER GRANTING
IN FORMA PAUPERIS APPLICATION RE: DKT. NOS. 1 &
A. WESTMORE United States Magistrate Judge
March 17, 2017, Defendant Zachary Freyer removed this
unlawful detainer action from San Mateo County Superior
Court, and applied to proceed in forma pauperis.
(Not. of Removal, Dkt. No. 1; IFP Appl., Dkt. No. 3.)
removal is clearly improper, and the parties have not
consented to the undersigned, for the reasons set forth
below, the Court reassigns this case to a district judge and
recommends that the case be remanded to state court.
Additionally, the Court grants Defendant's application to
proceed in forma pauperis.
Residential Management, LLC commenced this unlawful detainer
action against Defendant Zachary Freyer in San Mateo County
Superior Court on or around January 23, 2017. (Not. of
Removal at 2; Summons,  Dkt. No. 1 at 5.) The complaint
contains a single cause of action for unlawful detainer.
Id. The case is a “limited civil case, ”
in which Plaintiff seeks immediate possession of a certain
property located in Burlingame, California, which Defendant
occupies. (See Three Day Not. to Pay Rent or Quit,
Dkt. No. 1 at 6.)
January 5, 2017, Plaintiff allegedly served a written notice
on Defendant to pay rent or quit within three days.
Id. On January 23, 2017, Plaintiff filed the instant
unlawful detainer suit in state court, and summons was
issued. (Not. of Removal at 2; Summons, Dkt. No. 1 at 5.) On
February 22, 2017, Defendant filed an answer. (Dkt. No. 1 at
8.) On March 17, 2017, Defendant removed the action to
federal court on the grounds that it presents a federal
question. (Not. of Removal at 2.)
courts exercise limited jurisdiction. A “federal court
is presumed to lack jurisdiction in a particular case unless
the contrary affirmatively appears.” Stock W., Inc.
v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir.
1989) (citation omitted). A defendant may remove a civil
action from state court to federal court if original
jurisdiction would have existed at the time the complaint was
filed. See 28 U.S.C. § 1441(a).
“[R]emoval statutes are strictly construed against
removal.” Luther v. Countrywide Homes Loans
Servicing, LP, 533 F.3d 1031, 1034 (9th Cir. 2008).
“Federal jurisdiction must be rejected if there is any
doubt as to the right of removal in the first instance,
” such that courts must resolve all doubts as to
removability in favor of remand. Gaus v. Miles,
Inc., 980 F.2d 564, 566 (9th Cir. 1992). The burden of
establishing that federal jurisdiction exists is on the party
seeking removal. See Id. at 566-67.
district courts have original jurisdiction over actions that
present a federal question or those based on diversity
jurisdiction. See Wayne v. DHL Worldwide Express,
294 F.3d 1179, 1183 & n.2 (9th Cir. 2002). Federal
district courts have federal question jurisdiction over
"all civil actions arising under the Constitution, laws
or treaties of the United States." 28 U.S.C. §
1331. Federal question jurisdiction is governed by the
well-pleaded complaint rule, which provides that the basis
for federal jurisdiction must appear on the face of the
properly pleaded complaint, either because the complaint
directly raises an issue of federal law or because the
plaintiff's "right to relief under state law
requires resolution of a substantial question of federal law
in dispute between the parties." Franchise Tax Bd.
of Cal. v. Constr. Laborers Vacation Trust for S. Cal.,
463 U.S. 1, 13 (1983). "[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 . . . ." Caterpillar Inc. v.
Williams, 482 U.S. 386, 393 (1987) (citation omitted).
removed this unlawful detainer action from San Mateo County
Superior Court on the grounds that the district court has
jurisdiction because the case presents a federal question.
Federal Question Jurisdiction
claims that a federal question exists because Plaintiff
allegedly served a defective three day notice to pay rent or
quit, which he contends violates the Protecting Tenants at
Foreclosure Act. (Not. of Removal ¶ 7.) Defendant's
rights in an unlawful detainer action, however, depend on the
interpretation of state law. Further, Defendant has not shown
why the resolution of Plaintiff's unlawful detainer claim
will turn on a substantial question of federal law. In fact,
it seems that any such showing is unlikely, as Plaintiff is
presumably evicting Defendant to obtain possession of the
premises following the nonpayment of rent. The complaint,
therefore, fails to present a federal question or a
substantial question of federal law.
the well-pleaded complaint rule prevents the Court from
considering any additional claims, such that a defendant
cannot create federal question jurisdiction by adding claims
or defenses to a notice of removal. See Provincal
Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d
1083, 1086 (9th Cir. 2009); see also McAtee v. Capital
One, F.S.B., 479 F.3d 1143, 1145 (9th Cir.
2007) (even previously asserted counterclaims raising federal
issue will not permit removal). Here, Defendant's claim
that service of the three day notice was defective does not