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Bosio v. Lemke

United States District Court, S.D. California

June 20, 2017

DIANE MARIE BOSIO, Plaintiffs,
v.
RICHARD LEMKE, Defendant.

          ORDER REMANDING CASE (ECF NOS. 2, 3)

          HON. JANIS L. SAMMARTINO UNITED STATES DISTRICT JUDGE.

         Presently before the Court are Plaintiffs Elizabeth S. Del Pozo's and Diane Marie Bosio's Motions to Remand. (ECF Nos. 2, 3, respectively.) Also before the Court are Defendant Richard Lemke's responses in opposition to, (ECF Nos. 4, 5), and Plaintiff Bosio's reply in support of, (ECF No. 9), the Motions to Remand. The Court vacated the hearing on the motions and took them under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). (ECF No. 8.) Plaintiffs seek to remand the case to California Superior Court, County of San Diego on the grounds that the case was improperly removed because it fails to state a federal question. (See generally ECF Nos. 2, 3.) For the following reasons, the Court GRANTS Plaintiffs' Motions and REMANDS the case to the Superior Court of California, County of San Diego, Probate Division.

         BACKGROUND

         On March 12, 2004 Plaintiffs brought a probate action in the Superior Court of California in the matter of The Moore Family Trust. (ECF No. 2-1, at 2.[1]) On January 4, 2017, Plaintiffs Bosio and Chas Moore Rundberg filed a complaint in the state court action alleging that Lemke, then-trustee, was not qualified or capable of administering the Trust and was unable to properly execute the duties of the office of trustee. (Id.; see also Id. Ex. 1, ECF No. 2-3.) In fear the Trust would suffer irrevocable loss while Lemke acted as trustee, on February 2, 2017 Bosio and Rundberg filed a subsequent petition to restrain Lemke from acting as trustee, which was granted by the state court on February 7, 2017. (Id.; see also Id. Ex. 3, ECF No. 2-5.) On February 9, 2017, after discovering that Lemke transferred title to real property to himself, Bosio and Rundberg filed another petition requesting that the state court remove Lemke as trustee, appoint another in his place, and reconvey the property to the Trust. (Id.; see also Id. Ex. 4, ECF No. 2-6.) The state court granted this, and other, relief on February 14, 2017. (Id.; see also Id. Ex. 5, ECF No. 2-7.) And, after some briefing between the parties, on March 10, 2017 Del Pozo was appointed interim trustee. (Id.; see also Id. Ex. 7, ECF No. 2-9.)

         On March 27, 2017 Defendant Lemke filed his Notice of Removal in this Court. (“Not. of Removal, ” ECF No. 1.) Defendant's Notice indicates that while this case was not initially removable, “it became removable on March 22, 2017 because of an order” from the state court which was “procured by fraud upon the court when the petitioners stated they were beneficiaries of the Moore Family Trust, which is not true.” (Id. at 2.) Thus, Defendant claims the Court has federal question jurisdiction under (1) Federal Rule of Civil Procedure 60 (relief from judgment); (2) fraud upon the court; (3) tortious interference and/or intentional interference with contractual relations; and (4) violations of his constitutional rights under the Fifth and Fourteenth Amendments to the U.S. Constitution. (Id. at 4-5.)

         LEGAL STANDARD

         In cases “brought in a State court of which the district courts of the United States have original jurisdiction, ” defendants may remove the action to federal court. 28 U.S.C. § 1441(a). Section 1441 provides two bases for removal: diversity jurisdiction and federal question jurisdiction. Federal courts have diversity jurisdiction “where the amount in controversy” exceeds $75, 000, and the parties are of “diverse” state citizenship. 28 U.S.C. § 1332. Federal courts have federal question jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.

         The party invoking the removal statute bears the burden of establishing that federal subject-matter jurisdiction exists. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). Moreover, courts “strictly construe the removal statute against removal jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988)); Takeda v. Nw. Nat'l Life Ins. Co., 765 F.2d 815, 818 (9th Cir. 1985)). Therefore, “[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.” Gaus, 980 F.2d at 566 (citing Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)).

         “[F]ederal courts are under an independent obligation to examine their own jurisdiction.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990).

         ANALYSIS

         Because the Court lacks subject-matter jurisdiction, removal was improper. Defendant removes on the basis of a federal question, (see Not. of Removal 4-5), but the Complaint does not present a federal question.

         Federal question jurisdiction exists for “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Similarly, Article III of the U.S. Constitution grants federal courts the power to hear “all cases, in law and equity, arising under this Constitution, [and] the laws of the United States . . . .” Id.

         Although the “arising under” language of § 1331 mirrors the language used in Article III, courts have construed § 1331 more narrowly. See Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908).

         The Supreme Court has interpreted “arising under” in Article III to grant federal courts jurisdiction when federal law “forms an ingredient of the original cause.” Osborn v. Bank of the U.S., 22 U.S. 738, 822-25 (1824). For purposes of § 1331, however, federal courts must apply the “well-pleaded complaint rule.” Vaden v. Discover Bank, 556 U.S. 49, 60 (2009). A cause of action arises under federal law for purposes of § 1331, and is therefore a basis for removal, “only when the ...


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