United States District Court, C.D. California
Paul H. Mai, Plaintiff
Jose G. Zelaya, Defendants.
ORDER REMANDING CASE TO STATE COURT
Court sua sponte REMANDS this action to the
California Superior Court for the County of San
Bernardino 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 Crop Prot, Inc. v.
Henson, 537 U.S. 28, 32 (2002) (quoting Great N. Ry
Co. v. Alexander, 246 U.S. 276, 280 (1918)). Generally,
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).
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 Abrego v. Dow Chem. 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 Prot, 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 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
No basis for federal question jurisdiction has been
[√] The Complaint does not include any claim
“arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331.
[√] 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 plaintiffs 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 plaintiffs complaint, and even
if both parties admit that the defense is the only question
truly at issue in the case.” Franchise Tax Bd. v.
Constr. Laborers Vacation Tr., 463 U.S. 1, 14 (1983).
 Removing defendant(s) has not alleged facts sufficient to
show that the requirements for removal under 28 U.S.C. §
1443 are satisfied. Section 1443(1) provides for the removal
of a civil action filed "[a]gainst any person who is
denied or cannot enforce in the courts of such State a right
under any law providing for the equal civil rights of
citizens of the United States ...." Even assuming that
the removing defendant(s) has asserted rights provided
"by explicit statutory enactment protecting equal racial
civil rights, " Patel v. Del Taco, Inc., 446
F.3d 996, 999 (9th Cir. 2006) (citation omitted),
defendant(s) has not identified any "state statute or a
constitutional provision that purports to command the state
courts to ignore the federal rights" or pointed "to
anything that suggests that the state court would not enforce
[defendant's] civil rights in the state court
proceedings." Id. (citation omitted); see
also Bogart v. California, 355 F.2d 377, 381-82 (9th
Cir. 1966) (holding that conclusionary statements lacking any
factual basis cannot support removal under § 1443(1)).
Nor does § 1443(2) provide any basis for removal, as it
"confers a privilege of removal only upon federal
officers or agents and those authorized to act with or for
them in affirmatively executing duties under any federal law
providing for equal civil rights" and on state officers
who refuse to enforce discriminatory state laws. City of
Greenwood v. Peacock, 384 U.S. 808, 824 & 824 n.22
[√] The underlying action is an unlawful detainer
proceeding, arising under and governed by the laws of the
State of California.
 Removing defendant(s) claims that 28 U.S.C. § 1334
confers jurisdiction on this Court, but the underlying action
does not arise under Title 11 of the United States Code.
Diversity jurisdiction is lacking, and/or this case is not
removable on that basis:
[√] 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, and removing defendant(s) has not plausibly alleged
that the amount in controversy requirement has been met.
Id.; see Dart Cherokee Basin ...