United States District Court, N.D. California
SUA SPONTE ORDER RE CASE RELATION TO 17-CV-00214 RS,
OR IN THE ALTERNATIVE, ORDER REASSIGNING CASE TO DISTRICT
JUDGE; REPORT AND RECOMMENDATION TO GRANT IFP APPLICATION AND
REMAND TO SUPERIOR COURT OF CALIFORNIA, COUNTY OF MARIN Re:
Dkt. Nos. 1, 2
M. Ryu, Judge
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.
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 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.
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.
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
PROCEDURAL DEFECT IN REMOVAL
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)).
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].
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).
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
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 ...