United States District Court, S.D. California
ORDER: (1) GRANTING PLAINTIFF'S MOTION TO PROCEED
IN FORMA PAUPERIS; (2) SUA SPONTE REMANDING ACTION TO STATE
Gonzalo P. Curiel United States District Judge.
12, 2017, Defendant, Carlos Cantero
(“Defendant”), proceeding pro se, filed a motion
to proceed in forma pauperis (“IFP”) and
a notice of removal of this unlawful detainer action from the
Superior Court of the State of California for San Diego
County. Having reviewed the motion to proceed IFP, the Court
GRANTS the motion. Additionally, the Court finds it does not
have subject matter jurisdiction over this action.
Accordingly, the Court sua sponte REMANDS the action
to state court.
Motion to Proceed In Forma Pauperis
parties instituting any civil action, suit, or proceeding in
a district court of the United States, except an application
for writ of habeas corpus, must pay a filing fee of $400. 28
U.S.C. § 1914(a). An action may proceed despite a
party's failure to prepay the entire fee only if he is
granted leave to proceed IFP pursuant to 28 U.S.C. §
1915(a). Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th
Cir. 1999). The party must submit an affidavit demonstrating
his inability to pay the filing fee, and the affidavit must
include a complete statement of the plaintiff's assets.
28 U.S.C. § 1915(a)(1).
Court has reviewed Defendant's declaration and finds that
he is unable to pay fees or post securities required to
maintain this action. Defendant has submitted an application,
stating that he has fixed disability income at $1, 350 per
month and no employment. He further states he has no assets
and expenses of $1, 500 per month. Due to Defendant's
monthly expenses exceeding Defendant's monthly income,
the Court finds that Defendant is unable to pay the filing
fee. Therefore, the Court GRANTS Defendant's motion for
leave to proceed IFP.
Sua Sponte Remanding Action to State Court
action brought in state court may be “removed by the
defendant or the defendants” to the district court. 28
U.S.C. § 1441; see also 28 U.S.C. §1446
(“A defendant or defendants desiring to remove any
civil action from State court shall file . . . a notice of
removal . . . .”) “Federal courts are courts of
limited jurisdiction.” Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994). “It is
to be presumed that a cause lies outside this limited
jurisdiction, and the burden of establishing the contrary
rests upon the party asserting jurisdiction.”
Id. It is well-established that a federal court
cannot reach the merits of any dispute until it confirms that
it retains subject matter jurisdiction to adjudicate the
issues presented. Steel Co. v. Citizens for a Better
Environ., 523 U.S. 83, 94-95 (1988).
subject matter jurisdiction may be based on (1) federal
question jurisdiction under 28 U.S.C. § 1331; and (2)
diversity jurisdiction under 28 U.S.C. § 1332. Here,
Defendant argues that the Court has subject matter
jurisdiction under federal question. For an action to be
removed on the basis of federal question jurisdiction, the
complaint must establish either that federal law creates the
cause of action or that the plaintiff's right to relief
necessarily depends on the resolution of substantial
questions of federal law. Franchise Tax Bd. of Cal. v.
Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1,
10-11 (1983). The 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 plaintiff's properly pleaded
complaint.” Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987). It is well settled that 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 concede
that the federal defense is the only question truly at
issue." Id. at 393. Moreover, “[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 complaint.” Valles v. Ivy Hill
Corp., 410 F.3d 1071, 1075 (9th Cir. 2005).
“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).
plaintiff may choose to file suit in state court and avoid
federal question, a plaintiff may not use “artful
pleading” to avoid federal jurisdiction by excluding
necessary federal questions in the complaint. Franchise
Tax Bd., 463 U.S. at 22 (citations omitted). The artful
pleading doctrine states, a state-created cause of action can
be deemed to arise under federal law (1) where federal law
completely preempts state law; (2) where the claim is
necessarily federal in character; or (3) where the right to
relief depends on the resolution of a substantial, disputed
federal question .” ARCO Envtl. Remediation, LLC
v. Dep't of Health and Envtl. Quality of Montana,
213 F.3d 1108, 1114 (9th Cir. 2000).
review of the state court's complaint in this case shows
that Plaintiff, Hilda Garcia (“Plaintiff”),
alleges a single cause of action for unlawful detainer under
California state law. In the notice of removal, Defendant
argues that a federal statute, Protecting Tenants at
Foreclosure (“PTFA”), provides the Court with
federal question jurisdiction for two reasons: (1) the
unlawful detainer action actually asserts a cause of action
under the PTFA, and (2) the PTFA 90-day notice requirement
preempts California state law on notice and thus is a
required element of an unlawful detainer action.
“the PTFA expired on December 31, 2014.”
Fairview Tasman LLC v. Young, Case No. 15cv5493-LHK,
2016 WL 199060, at *2 (N.D. Cal. Jan. 18, 2016) (citing
Dodd-Frank Wall Street Reform and Consumer Protection Act,
Pub. L. No. 111-203, 124 Stat. 1376, 2204 (2010) (setting
date of expiration)); see also Franks v. Franks,
Case No. 17cv893-CAB-AGS, 2017 WL 1735169, at *2 (S.D. Cal.
May 4, 2017). Here, the unlawful detainer action was filed on
March 6, 2017, and there is no indication that any of the
facts constituting the unlawful detainer action occurred
prior to December 31, 2014. Even if the PTFA applied,
Defendant's arguments are without merit.
PTFA does not create a cause of action for a tenant.
Logan v. U.S. Bank Nat'l. Ass'n, 722 F.3d
1163, 1169 (9th Cir. 2013). In Logan v. U.S. Bank
Nat'l. Ass'n., the court analyzed the
Congressional record to determine that Congress showed no
implicit or explicit intent to create a cause of action under
the PTFA. Id; see also Nativi v. Deutsche Bank
Nat'l Trust Co., No. 09-06096 PVT, 2010 WL 2179885
(N.D. Cal. May 26, 2010). Subsequent to Logan,
district courts have cited Logan to support holdings
that the PTFA does not create a cause of action for
landlords. Fairview Tasman LLC v. Young, Case No.
15cv5493-LHK, 2016 WL 199060, at *2 (N.D. Cal. Jan. 18, 2016)
(holding that the Logan reasoning also applies to an
implied right of action for landlords); San Diego
Pacificvu LLC v. Wade, No. 15-CV-00181-BAS RBB, 2015 WL
588561, at *3 (S.D. Cal. Feb. 11, 2015). In Logan,
the court held that the PTFA neither explicitly nor
implicitly creates a cause of action, but instead explained
that the PTFA is a defense in California state eviction
proceedings. Logan, 722 F.3d at 1173. Therefore, the
PTFA does not create a cause of action that could have
originally been brought in federal court and the PTFA as a
defense is insufficient to create jurisdiction. See
Caterpillar Inc., 482 U.S. at 393.
gives rise to federal question jurisdiction only when an area
of state law has been completely preempted by federal
law.” Perez v. Nidek Co. Ltd., 657 F.Supp.2d
1156, 1161 (S.D. Cal. 2009) (citing Caterpillar
Inc., 482 U.S. at 393); see also Wells Fargo Bank v.
Lappen, No. C 11-01932 LB, 2011 WL 2194117, at *4 (N.D.
Cal. June 6, 2011). Defendant argues that the PTFA 90-day
notice requirement preempts less protective state laws, such
as those here in California, and that Plaintiff must show
compliance with the PTFA's notice requirement in order to
make a prima facie showing of an unlawful detainer claim.
However, Defendant has not demonstrated that the PTFA
preempts any state provision and district courts have
rejected the argument that the PTFA preempts state law and
have held it is not a basis for federal question
jurisdiction. See Bay Home Pres. Serv. v. Nguyen,
15cv506-LHK, 2015 WL 1262144, at *2 (N.D. Cal. March 17,
2015); Wells Fargo Bank, 2011 WL 2194117, at *4;
BDA Invest. Props. LLCv. Sosa, No. CV
11-3684 GAF (RZx), 2011 WL 1810634, at *2 (CD. Cal. May 12,
2011) (citing Robinson v. Michigan Consol. Gas Co.
Inc., 918 F.2d 579, 585 (9th Cir. 1990) (“The
scope of complete preemption as recognized by the Supreme
Court is extremely limited, existing only where a ...