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RPR Larkspur Owner, LLC v. Jones

United States District Court, N.D. California

April 19, 2017

DONALD JONES, Defendant.


          Donna M. Ryu, Judge

         This is Defendant Donald Jones's second attempt to remove this case from the Superior Court of California, County of Marin, where it is pending as a complaint for unlawful detainer against Mr. Jones.

         Mr. Jones unsuccessfully attempted to remove this case on January 17, 2017 on the basis of federal question jurisdiction, 28 U.S.C. § 1331. See Notice of Removal [Docket No. 1] in RPR Larkspur Owner, LLC v. Jones, Case No. 3:17-cv-00214-RS (“Jones I”). The Honorable Richard Seeborg remanded the case to Marin County Superior Court on February 22, 2017. See Order Adopting Report and Recommendation and Remanding Case (“Order adopting R&R”) [Docket No. 11] in Jones I.

         Mr. Jones removed the same case again on March 23, 2017, and also filed an application to proceed in forma pauperis (“IFP”). See Notice of Removal [Docket No. 1] in RPR Larkspur Owner, LLC v. Jones, Case No. 4:17-cv-01553 (“Jones II”); IFP Application [Docket No. 2]. As with Jones I, the Notice of Removal in Jones II states one ground for removal: that the Complaint presents a federal question such that the case could have originally been filed in this Court. (Notice of Removal ¶¶ 4-7) [Docket No. 1]; see also Notice of Removal in Jones I [Docket No. 1].

         The parties have not yet filed a declination or consent to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). Since Jones I and the instant action are likely related, the undersigned hereby issues a sua sponte order referring this case to Judge Seeborg for a case-relation determination. If Judge Seeborg determines that this case is not related to Jones I, then the case should be reassigned to a district judge for final disposition. The undersigned also issues this Report and Recommendation, with the recommendation that the IFP application be granted and that summary remand be ordered.


         Having evaluated Mr. Jones's financial affidavit, the undersigned finds that he has satisfied the economic eligibility requirement of 28 U.S.C. § 1915(a) and therefore recommends that the IFP application be granted. The undersigned next turns to the issue of subject matter jurisdiction.


         Pursuant to 28 U.S.C. § 1441, “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or other defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). “If the district court at any time determines that it lacks jurisdiction over the removed action, it must remedy the improvident grant of removal by remanding the action to state court.” Cal. ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir.), opinion amended on denial of reh'g, 387 F.3d 966 (9th Cir. 2004) (citing 28 U.S.C. § 1447). “The removal statute is strictly construed against removal jurisdiction, and the burden of establishing federal jurisdiction falls to the party invoking the statute.” Id. “A defendant seeking to remove from state to federal court must file a notice of removal within thirty days of receiving a copy of the initial pleading.” Destfino v. Reiswig, 630 F.3d 952, 954 (9th Cir. 2011) (citing 28 U.S.C. § 1446(b)).

         Mr. Jones's second notice of removal is untimely, as it was filed more 30 days after his receipt of the initial complaint. See Deutsche Bank Nat. Trust Co. v. Baltazar, No. C 12-2281 PJH, 2012 WL 2159414, at *2 (N.D. Cal. June 13, 2012). While Mr. Jones does not state when he received the initial complaint in his second Notice of Removal, the Marin County Superior Court's Register of Action shows that the state court ordered service of the complaint and summons by posting and mailing on October 27, 2016, and Mr. Jones filed his demurrer on November 8, 2016. See Register of Action for RPR Larkspur Owner, LLC v. Jones, Marin County Superior Court Case No. CIV 1603823, available at (last accessed on April 19, 2017). Therefore, at the latest, Mr. Jones received the initial complaint at the beginning of November 2016, and should have filed any notice of removal by the beginning of December 2016. Mr. Jones did not do so until March 23, 2017. [Docket No. 1].


         In addition to the procedural defect discussed above, Mr. Jones also has failed to establish federal subject matter jurisdiction. Federal courts are courts of limited jurisdiction, and 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) (citations omitted). “[T]he 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.” Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)). That rule applies equally to evaluating the existence of federal questions in cases brought initially in federal court and in removed cases. See Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 830 n.2 (2002).

         A federal question exists only when it is presented by what is or should have been alleged in the complaint. Id. at 830. The implication of a federal question through issues raised by an answer or counterclaim does not suffice to establish federal question jurisdiction. Id. at 831; see also ARCO Envtl. Remediation, LLC v. Dep't of Health & Envtl. Quality of Mont., 213 F.3d 1108, 1113 (9th Cir. 2000) (“[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.” (citation and internal quotation marks omitted) (brackets in original)).

         Here, Mr. Jones asserts that the basis for removal is federal question jurisdiction. (Notice of Removal ¶ 4). He argues that a federal question arises out of his response to Plaintiff's unlawful detainer complaint. Mr. Jones contends that he withheld rental payments because Plaintiff discriminated against him and his family on the basis of their physical disabilities in violation of the Fair Housing Act, 42 U.S.C. § 3604(f)(3)(A) (“FHA”). (Notice of Removal ¶ 5). According to Mr. Jones, Plaintiff refused to make reasonable modifications to the property to allow Defendant and his family full enjoyment of the property such as ensuring the doors were sufficiently wide enough to permit passage of handicapped persons in wheelchairs; placing environmental controls such as light switches, electrical outlets, and thermostats in accessible locations; permitting reinforcements ...

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