United States District Court, E.D. California
PAMELA J. VASQUEZ, Plaintiff,
KATRINA MULLINS and Does 1-5, Defendants.
SUA SPONTE ORDER REMANDING ACTION TO STATE
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
undersigned revokes any actual or anticipated referral to a
Magistrate Judge for the purposes of Findings and
Recommendations in this case.
November 15, 2017, Defendant Katrina Mullins filed a pro se
Notice of Removal with this Court, seeking to remove an
action from the Superior Court for the County of Kern. Doc.
1. For the following reasons, the Court sua sponte
REMANDS this case to the Superior Court of California for the
County of Kern.
28 U.S.C. § 1441(a), a defendant may remove an action to
federal court if the district court has original
jurisdiction. Hunter v. Phillip Morris USA, 582 F.3d
1039, 1042 (9th Cir. 2009). If at any time before final
judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded. 28 U.S.C.
§ 1447(c). Federal courts are courts of limited
jurisdiction and can adjudicate only those cases authorized
by the United States Constitution and Congress. Generally,
those are cases involving diversity of citizenship or a
federal question, or where the United States is a party.
See 28 U.S.C. § 1442; Kokkonen v. Guardian
Life Ins. Co., 511 U.S. 375 (1994); Franchise Tax
Bd. of State of Cal. v. Constr. Laborers Vacation Trust for
S. California, 463 U.S. 1, 8 (1983). Lack of subject
matter jurisdiction is never waived and may be raised by the
Court sua sponte. Fed.R.Civ.P. 12(h)(3); Snell
v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002).
determining the presence or absence of federal question
jurisdiction in removal cases, the “well-pleaded
complaint rule” applies, “which provides that
federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff's properly pleaded
complaint.” Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987). The removal statute is strictly
construed in favor of remand and against removal. Harris
v. Bankers Life and Cas. Co., 425 F.3d 689, 698 (9th
Cir. 2005). This means that the defendant has the burden of
establishing that removal is proper. California ex rel.
Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir.
2004). Federal jurisdiction must be rejected if there is any
doubt as to the right of removal. Gaus v. Miles,
Inc., 980 F.2d 564, 566 (9th Cir. 1992).
Defendant is unable to establish federal question
jurisdiction because the complaint filed in the state court
contains a single cause of action for unlawful detainer based
on California Code of Civil Procedure section 1161a. Unlawful
detainer actions are strictly within the province of the
state courts. See PNC Bank Nat'l Ass'n v.
Ahluwalia, No. C 15-01264 WHA, 2015 WL 3866892, at *4
(N.D. Cal. June 22, 2015) (collecting cases). Therefore,
Plaintiff's complaint avoids federal question
jurisdiction. A defendant cannot create federal subject
matter jurisdiction by adding claims or defenses to a notice
of removal. Vaden v. Discover Bank, 556 U.S. 49, 50
(2009) (federal question jurisdiction cannot “rest upon
an actual or anticipated counterclaim”); Valles v.
Ivy Hill Corp., 410 F.3d 1071, 1075 (9th Cir. 2005)
(“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
next possible basis for this Court's jurisdiction is
diversity. District courts have diversity jurisdiction over
“all civil actions where the matter in controversy
exceeds the sum or value of $75, 000, exclusive of interests
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; see also Geographic
Expeditions, Inc. v. Estate of Lhotka, 599 F.3d
1102, 1106 (9th Cir. 2010).
cannot establish diversity of citizenship jurisdiction in
this case. The complaint filed in the underlying unlawful
detainer action unequivocally states that the amount in
controversy is less than $10, 000. Doc. 1 at 10. When a state
court complaint affirmatively alleges that the amount in
controversy is less than the jurisdictional threshold, the
party seeking removal must prove with “legal
certainty” that the jurisdictional amount is met.
Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699
(9th Cir. 2007); see also Glassical Creations, Inc. v.
Canter, No. CV 15-04358 MMM PJWX, 2015 WL 4127912, at *4
& n. 10 (C.D. Cal. July 7, 2015). Defendant's notice
of removal does not provide any basis for a finding that the
amount in controversy exceeds the $75, 000 threshold. The
amount in controversy is determined without regard to any set
off or counterclaim to which defendant may be entitled.
Mesa Indus., Inc. v. Eaglebrook Products, Inc., 980
F.Supp. 323, 326 (D. Ariz. 1997). Thus, the amount in
controversy is insufficient to provide this Court with
in removal cases where the purported basis of jurisdiction is
diversity jurisdiction, removal is not permitted where a
defendant is a citizen of the state in which the plaintiff
originally brought the action (even if the opposing parties
are citizens of different states). See 28 U.S.C.
§ 1441(b). Here, Defendant lists an address in
California City, California, and does not provide any
alternative basis for a finding of diverse citizenship. Doc.
1 at 1.
the Court REMANDS this case to the Superior Court for the