United States District Court, C.D. California
CIVIL MINUTES - GENERAL
HONORABLE PERCY ANDERSON, UNITED STATES DISTRICT JUDGE
IN CHAMBERS - COURT ORDER
Court is in receipt of a Notice of Removal filed by
defendants Antonio and Eugenia Acevedo
(“Defendants”) on October 3, 2017. In its
Complaint, plaintiff Deutsche Bank National Trust Company, as
trustee for GSAA Home Equity Trust 2007-5 Mortgage
Pass-Through Certificates, Series 2007-5
(“Plaintiff”) alleges a single state law claim
for unlawful detainer. Defendants, who are appearing pro se,
assert that this Court has subject matter jurisdiction on the
basis of: (1) federal question jurisdiction under 28 U.S.C.
§ 1331; (2) diversity jurisdiction under 28 U.S.C.
§ 1332; (3) 28 U.S.C. § 1343, which provides that
district courts shall have original jurisdiction of any civil
action authorized by law to redress civil rights violations;
and (4) 28 U.S.C. § 1443, which creates federal removal
jurisdiction for actions brought against people who cannot
enforce in state court “any law providing for the equal
civil rights of citizens of the United States”
courts are courts of limited jurisdiction, having subject
matter jurisdiction only over matters authorized by the
Constitution and Congress. See, e.g., Kokkonen
v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct.
1673, 1675, 128 L.Ed.2d 391 (1994). A “strong
presumption” against removal jurisdiction exists.
Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir.
1992). In seeking removal, the defendant bears the burden of
proving that jurisdiction exists. Scott v. Breeland,
792 F.2d 925, 927 (9th Cir. 1986).
28 U.S.C. § 1331, this Court has original jurisdiction
over civil actions “arising under” federal law.
Removal based on § 1331 is governed by the
“well-pleaded complaint” rule. Caterpillar,
Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425,
2429, 96 L.Ed.2d 318 (1987). Under the rule, “federal
jurisdiction exists only when a federal question is presented
on the face of plaintiff's properly pleaded
complaint.” Id. at 392, 107 S.Ct. at 2429, 96
L.Ed.2d 318. If the complaint does not specify whether a
claim is based on federal or state law, it is a claim
“arising under” federal law only if it is
“clear” that it raises a federal question.
Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir.
1996). Thus, plaintiff is generally the “master of the
claim.” Caterpillar, 482 U.S. at 392, 107
S.Ct. at 2429, 96 L.Ed.2d 318. “A case may not
be removed to federal court on the basis of a federal
defense, including the defense of pre-emption.”
Id. at 393, 107 S.Ct. at 2430, 96 L.Ed.2d 318
(emphasis in original). The only exception to this rule is
where plaintiff's federal claim has been disguised by
“artful pleading, ” such as where the only claim
is a federal one or is a state claim preempted by federal
law. Sullivan v. First Affiliated Sec., Inc., 813
F.2d 1368, 1372 (9th Cir. 1987).
the underlying Complaint contains only a single cause of
action for unlawful detainer. Accordingly, this action does
not “arise under” federal law. Moreover,
Defendants' references to 42 U.S.C. § 1983, and the
Sixth and Fourteenth Amendments, do not constitute a proper
basis for removal because neither a federal defense nor an
actual or anticipated federal counterclaim forms a basis for
removal. See, e.g., Vaden v. Discover Bank,
556 U.S. 49, 61-62, 129 S.Ct. 1262, 1272, 173 L.Ed.2d 206
(2009). For similar reasons, Defendants' reliance on 28
U.S.C. § 1343 is misplaced. Specifically, 28 U.S.C.
§ 1343 provides that district courts shall have original
jurisdiction where the plaintiff seeks redress for the
deprivation of his or her civil rights. However, Plaintiff
has not asserted any claims for civil rights violations.
Instead, Plaintiff's Complaint alleges only a single
cause of action for unlawful detainer. 28 U.S.C. § 1343
therefore does not provide a proper basis for removal.
have also failed to show that diversity jurisdiction exists
over this action. Subject matter jurisdiction based on
diversity of citizenship requires all plaintiffs to have
different citizenship from all defendants and that the amount
in controversy exceed $75, 000. See 28 U.S.C. §
1332; Owen Equip. & Erection Co. v. Kroger, 437
U.S. 365, 373, 98 S.Ct. 2396, 2402, 57 L.Ed.2d 274 (1978). To
establish citizenship for diversity purposes, a natural
person must be a citizen of the United States and be
domiciled in a particular state. Kantor v. Wellesley
Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir. 1983).
Persons are domiciled in the places they reside with the
intent to remain or to which they intend to return. See
Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th
Cir. 2001). The citizenship of a partnership or other
unincorporated entity is the citizenship of its members.
See Johnson v. Columbia Props. Anchorage, LP, 437
F.3d 894, 899 (9th Cir. 2006) (“[L]ike a partnership,
an LLC is a citizen of every state of which its
owners/members are citizens.”); Marseilles Hydro
Power, LLC v. Marseilles Land & Water Co., 299 F.3d
643, 652 (7th Cir. 2002) (“the relevant citizenship [of
an LLC] for diversity purposes is that of the members, not of
the company”); Handelsman v. Bedford Village
Assocs., Ltd. P'ship, 213 F.3d 48, 51-52 (2d Cir.
2000) (“a limited liability company has the citizenship
of its membership”); Cosgrove v. Bartolotta,
150 F.3d 729, 731 (7th Cir. 1998); TPS Utilicom Servs.,
Inc. v. AT & T Corp., 223 F.Supp.2d 1089, 1101 (C.D.
Cal. 2002) (“A limited liability company . . . is
treated like a partnership for the purpose of establishing
citizenship under diversity jurisdiction.”);
Inmexti, S. de R.L. de C.V. v. TACNA Services, Inc.,
No. 12-cv-1379 BTM (JMA), 2012 WL 3867325, at *2 (S.D. Cal.
Sept. 6, 2012) (“When determining the citizenship of a
domestic LLC or LLP, the court looks to the citizenship of
Defendants have failed to establish that there is complete
diversity or that the amount in controversy exceeds $75, 000.
First, neither the Complaint nor the Notice of Removal
affirmatively allege the parties' citizenship. Second, in
unlawful detainer actions, the title to the property is not
involved; only the right to possession is implicated.
Evans v. Superior Court, 67 Cal.App.3d 162, 170
(1977). As such, the amount in controversy is determined by
the amount of damages sought in the Complaint, rather than by
the value of the subject real property. Id. Here,
Plaintiff's Complaint specifically alleges that damages
do not exceed $10, 000. Given that the value of the subject
real property is not in controversy, Defendants have failed
to show that this action meets the amount in controversy
requirement for diversity jurisdiction.
the Notice of Removal's invocation of 28 U.S.C. §
1443 do not support removal. A defendant “who is denied
or cannot enforce” his or her civil rights in state
court may remove a civil action or criminal prosecution to
federal court. 28 U.S.C. § 1443. Section 1443(1) was
enacted “to remove from state courts groundless charges
not supported by sufficient evidence when these charges are
based on race and deny one his federally protected equal
rights as guaranteed by Title II of the 1964 Civil Rights
Act.” Walker v. Georgia, 417 F.2d 5, 9 (5th
Cir. 1969). Section 1443 provides, in pertinent part, that
“[a]ny of the following civil actions or criminal
prosecutions, commenced in a State court may be removed by
the defendant to the district court of the United States for
the district and division embracing the place wherein it is
pending: (1) Against any person who is denied or cannot
enforce in the courts of such State a right under any law
providing for the equal civil rights of citizens of the
United States, or of all persons within the jurisdiction
thereof . . . .” 28 U.S.C. § 1443(1).
A petition for removal under § 1443(1) must satisfy the
two-part test articulated by the Supreme Court in Georgia
v. Rachel, 384 U.S. 780, 788-92, 794-804, 86 S.Ct. 1783,
16 L.Ed.2d 925 (1966) and City of Greenwood, Miss. v.
Peacock, 384 U.S. 808, 824-28, 86 S.Ct. 1800, 16 L.Ed.2d
944 (1966). First, the petitioners must assert, as a defense
to the prosecution, rights that are given to them by explicit
statutory enactment protecting equal racial civil rights.
Second, petitioners must assert that the state courts will
not enforce that right, and that allegation must be supported
by reference to a state statute or a constitutional provision
that purports to command the state courts to ignore the
Patel v. Del Taco, Inc., 446 F.3d 996, 998-99 (9th
Cir. 2006) (internal citations and quotation omitted).
do not allege any facts that would support removal under
§ 1443 and therefore Defendants meet neither part of the
Supreme Court's test in Georgia v. Rachel. There
is no allegation or any other indication that Defendants have
properly sought to invoke a law that provides “for the
equal civil rights of citizens of the United States, ”
or that he is unable to pursue such a claim because the state
court is unable or unwilling to enforce such a claim.
Therefore, the Notice of Removal's allegations are
insufficient to establish the Court's jurisdiction under
28 U.S.C. § 1443.
foregoing reasons, Defendants have failed to meet their
burden of showing that this Court possesses subject matter
jurisdiction over this action. Because the Court lacks
subject matter jurisdiction, this action is hereby remanded
to the ...