United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
February 22, 2017, defendant Tomery Darling filed a notice of
removal of this action from the Placer County Superior Court
along with an application to proceed in forma pauperis. (ECF
Nos. 1 & 2.) Defendant Darling is proceeding pro se.
Accordingly, the matter has been referred to the undersigned
for all purposes encompassed by Local Rule 302(c)(21).
February 27, 2017, the undersigned issued an order to show
cause ordering defendant to show cause in writing within
twenty-one days as to why this action should not be summarily
remanded to the Placer County Superior Court due to a lack of
subject matter jurisdiction. (ECF No. 3.) The twenty-one day
period has passed. Although defendant has filed motions to
vacate judgment and dismiss, defendant has not responded to
the February 27, 2017 order to show cause. (ECF Nos. 4, 6,
is a threshold inquiry that must precede the adjudication of
any case before the district court. Morongo Band of
Mission Indians v. Cal. State Bd. of Equalization, 858
F.2d 1376, 1380 (9th Cir. 1988). Federal courts are courts of
limited jurisdiction and may adjudicate only those cases
authorized by federal law. Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 377 (1994); Willy v. Coastal
Corp., 503 U.S. 131, 136-37 (1992). “Federal
courts are presumed to lack jurisdiction, ‘unless the
contrary appears affirmatively from the record.'”
Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993)
(quoting Bender v. Williamsport Area Sch. Dist., 475
U.S. 534, 546 (1986)).
subject matter jurisdiction may be raised by the court at any
time during the proceedings. Attorneys Trust v. Videotape
Computer Prods., Inc., 93 F.3d 593, 594-95 (9th Cir.
1996). A federal court “ha[s] an independent obligation
to address sua sponte whether [it] has subject-matter
jurisdiction.” Dittman v. California, 191 F.3d
1020, 1025 (9th Cir. 1999). It is the obligation of the
district court “to be alert to jurisdictional
requirements.” Grupo Dataflux v. Atlas Global
Group, L.P., 541 U.S. 567, 593 (2004). Without
jurisdiction, the district court cannot decide the merits of
a case or order any relief. See Morongo, 858 F.2d at
well established that the statutes governing removal
jurisdiction must be “strictly construed against
removal.” Libhart v. Santa Monica Dairy Co.,
592 F.2d 1062, 1064 (9th Cir. 1979) (citing Shamrock Oil
& Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941));
see also Syngenta Crop Prot., Inc. v. Henson, 537
U.S. 28, 32 (2002); Provincial Gov't of Martinduque
v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir.
2009). “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. 1992). “‘The burden of establishing
federal jurisdiction falls on the party invoking
removal.'” Harris v. Provident Life &
Accident Ins. Co., 26 F.3d 930, 932 (9th Cir. 1994)
(quoting Gould v. Mut. Life Ins. Co., 790 F.2d 769,
771 (9th Cir.1986)); see also Provincial Gov't of
Martinduque, 582 F.3d at 1087.
basic federal jurisdiction statutes are 28 U.S.C.
§§ 1331 and 1332, which confer “federal
question” and “diversity” jurisdiction,
respectively. Federal jurisdiction may also be conferred by
federal statutes regulating specific subject matter.
“[T]he existence of federal jurisdiction depends solely
on the plaintiff's claims for relief and not on
anticipated defenses to those claims.” ARCO Envtl.
Remediation, LLC v. Dep't of Health & Envtl.
Quality, 213 F.3d 1108, 1113 (9th Cir. 2000).
courts have diversity jurisdiction only over “all civil
actions where the matter in controversy exceeds the sum or
value of $75, 000, exclusive of interest 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. “To demonstrate citizenship for diversity
purposes a party must (a) be a citizen of the United States,
and (b) be domiciled in a state of the United States.”
Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986).
“Diversity jurisdiction requires complete diversity
between the parties-each defendant must be a citizen of a
different state from each plaintiff.” In re
Digimarc Corp. Derivative Litigation, 549 F.3d 1223,
1234 (9th Cir. 2008).
the domestic relations exception “divests the federal
courts of power to issue divorce, alimony and child custody
decrees.” Ankenbrandt v. Richards, 504 U.S.
689, 703 (1992). “Even when a federal question is
presented, federal courts decline to hear disputes which
would deeply involve them in adjudicating domestic
matters.” Thompson v. Thompson, 798 F.2d 1547,
1558 (9th Cir.1986), aff'd, 484 U.S. 174 (1988);
see also Tree Top v. Smith, 577 F.2d 519 (9th Cir.
1978) (declining to exercise jurisdiction over habeas
petition seeking custody of child who had been adopted by
others). In this regard, courts “traditionally decline
to exercise jurisdiction in domestic relations cases when the
core issue involves the status of parent and child or husband
and wife.” Coats v. Woods, 819 F.2d 236, 237
(9th Cir. 1987); see also Peterson v. Babbitt, 708
F.2d 465, 466 (9th Cir. 1983) (same). “For that matter,
the whole subject of domestic relations and particularly
child custody problems is generally considered a state law
matter.” Peterson, 708 F.2d at 466.
it appears that the court does not have federal question or
diversity jurisdiction over this action. Moreover, the core
issue involved in this action concerns state law matters
pertaining to divorce and child custody. (ECF No. 1 at 4; ECF
No. 11 at 6-8.)
IT IS HEREBY ORDERED that the April 24, 2017 motion to
dismiss (ECF No. 8) is denied without prejudice to
IT IS HEREBY RECOMMENDED that:
1. Defendant's February 22, 2017 motion to proceed in
forma pauperis (ECF ...