United States District Court, E.D. California
SUA SPONTE ORDER REMANDING ACTION TO STATE
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
undersigned revokes any actual or anticipated referral to a
Magistrate Judge for the purposes of Findings and
Recommendations in this case.
April 3, 2017, Defendants Marlene R. Gardner and Guy W.
Gardner filed a pro se Notice of Removal with this Court,
seeking to remove an action from the Superior Court for the
County of Stanislaus. Doc. 1. For the following reasons, the
Court sua sponte REMANDS this case to the Superior
Court of California for the County of Stanislaus.
28 U.S.C. § 1441(a), a defendant may remove an action to
federal court if the district court has original
jurisdiction. Hunter v. Phillip Morris USA, 582 F.3d
1039, 1042 (9th Cir. 2009). 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). Federal courts are courts of limited
jurisdiction and can adjudicate only those cases authorized
by the United States Constitution and Congress. Generally,
those cases involve diversity of citizenship, a federal
question, or where the United States is a party. See
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994);
Franchise Tax Bd. of State of Cal. v. Constr. Laborers
Vacation Trust for S. California, 463 U.S. 1, 8 (1983);
28 U.S.C. § 1442. Lack of subject matter jurisdiction is
never waived and may be raised by the Court sua
sponte. Fed.R.Civ.P. 12(h)(3); Snell v. Cleveland,
Inc., 316 F.3d 822, 826 (9th Cir. 2002). Furthermore,
the law is clear in the Ninth Circuit that the removal
statute should be strictly construed in favor of remand and
against removal. Harris v. Bankers Life and Cas.
Co., 425 F.3d 689, 698 (9th Cir. 2005). Among other
things, this means that the defendant always has the burden
of establishing that removal is proper. California ex
rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th
Cir. 2004). Federal jurisdiction must be rejected if there is
any doubt as to the right of removal in the first instance.
Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.
determining the presence or absence of federal question
jurisdiction in removal cases, the “well-pleaded
complaint rule” applies, “which provides that
federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff's properly pleaded
complaint.” Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987). Here, Defendants are unable to
establish federal question jurisdiction because the complaint
filed in the state court contains a single cause of action
for unlawful detainer based on California Code of Civil
Procedure section 1161a. Unlawful detainer actions are
strictly within the province of the state courts. See PNC
Bank Nat'l Ass'n v. Ahluwalia, No. C 15-01264
WHA, 2015 WL 3866892, at *4 (N.D. Cal. June 22, 2015)
(collecting cases). Therefore, Plaintiffs' complaint
avoids federal question jurisdiction. A defendant cannot
create federal subject matter jurisdiction by adding claims
or defenses to a notice of removal. Vaden v. Discover
Bank, 556 U.S. 49, 50 (2009) (federal question
jurisdiction cannot “rest upon an actual or anticipated
counterclaim”); Valles v. Ivy Hill Corp., 410
F.3d 1071, 1075 (9th Cir. 2005) (“A federal law defense
to a state-law claim does not confer jurisdiction on a
federal court, even if the defense is that of federal
preemption and is anticipated in the plaintiff's
next possible basis for this Court's jurisdiction is
diversity. District courts have diversity jurisdiction over
“all civil actions where the matter in controversy
exceeds the sum or value of $75, 000, exclusive of interests
and costs, ” and the action is between “(1)
citizens of different States; (2) citizens of a State and
citizens or subjects of a foreign state; (3) citizens of
different States and in which citizens or subjects of a
foreign state are additional parties; and (4) a foreign state
. . . as plaintiff and citizens of a State or of different
States.” 28 U.S.C. § 1332; see also Geographic
Expeditions, Inc. v. Estate of Lhotka, 599 F.3d 1102,
1106 (9th Cir. 2010). Defendants cannot establish diversity
of citizenship jurisdiction in this case. The complaint filed
in the underlying unlawful detainer action unequivocally
states that the amount in controversy is less than $10, 000.
When a state court complaint affirmatively alleges that the
amount in controversy is less than the jurisdictional
threshold, the party seeking removal must prove with
“legal certainty” that the jurisdictional amount
is met. Guglielmino v. McKee Foods Corp., 506 F.3d
696, 699 (9th Cir. 2007); see also Glassical Creations,
Inc. v. Canter, No. CV 15-04358 MMM PJWX, 2015 WL
4127912, at *4 & n. 10 (C.D. Cal. July 7, 2015).
Defendants' notice of removal does not provide any basis
for a finding that the amount in controversy exceeds the $75,
000 threshold. The amount in controversy is determined
without regard to any setoff or counterclaim to which
defendant may be entitled. Mesa Indus., Inc. v.
Eaglebrook Products, Inc., 980 F.Supp. 323, 326 (D.
Ariz. 1997). Thus, the amount in controversy is insufficient
to provide this Court with diversity jurisdiction.
in removal cases where the purported basis of jurisdiction is
diversity jurisdiction, removal is not permitted where a
defendant is a citizen of the state in which the plaintiff
originally brought the action (even if the opposing parties
are citizens of different states). See 28 U.S.C.
§ 1441(b). Here, Defendants lists their address as 1105
Ione Way Modesto, California 95351, California, and do not
provide any alternative basis for a finding of diverse
the Court REMANDS this case to the Superior Court for the
County of ...