United States District Court, C.D. California
PRESENT: HONORABLE CORMAC J. CARNEY, UNITED STATES DISTRICT
CIVIL MINUTES - GENERAL
(IN CHAMBERS) ORDER GRANTING PLAINTIFF'S MOTION TO
read and considered the papers presented by the parties, the
Court finds this matter appropriate for disposition without a
hearing. See Fed. R. Civ. P. 78; Local Rule 7-15.
Accordingly, the hearing set for November 27, 2017, at 1:30
p.m. is hereby vacated and off calendar.
the Court is Plaintiff's motion to remand this case to
Riverside Superior Court. (Dkt. 8.) Defendants have not filed
an opposition to this motion. (See generally docket
entries.) Plaintiff filed this unlawful detainer
action in Riverside Superior Court on June 27, 2017. (Dkt. 1
Ex. A.) Defendants removed the action on October 3, 2017.
(Dkt. 1 [Notice of Removal].) The Court GRANTS
Plaintiff's motion to remand as the Court lacks subject
matter jurisdiction over the instant case.
right of removal is entirely a creature of statute and
‘a suit commenced in a state court must remain there
until cause is shown for its transfer under some act of
Congress.'” Syngenta Crop Prot., Inc. v.
Henson, 537 U.S. 28, 32 (2002) (quoting Great N. Ry.
Co. v. Alexander, 246 U.S. 276, 280 (1918)). Generally,
where Congress has acted to create a right of removal, those
statutes are strictly construed against removal jurisdiction.
Id.; Nevada v. Bank of Am. Corp., 672 F.3d
661, 667 (9th Cir. 2012); Gaus v. Miles, Inc., 980
F.2d 564, 566 (9th Cir. 1992). Unless otherwise expressly
provided by Congress, a defendant may remove “any civil
action brought in a State court of which the district courts
of the United States have original jurisdiction.” 28
U.S.C. § 1441(a); Dennis v. Hart, 724 F.3d
1249, 1252 (9th Cir. 2013). The removing defendant bears the
burden of establishing federal jurisdiction. Abrego
Abrego v. Dow Chem. Co., 443 F.3d 676, 682 (9th Cir.
2006); Gaus, 980 F.2d at 566-67. “Under the
plain terms of § 1441(a), in order properly to remove
[an] action pursuant to that provision, [the removing
defendant] must demonstrate that original subject-matter
jurisdiction lies in the federal courts.” Syngenta
Crop Prot., 537 U.S. at 33. Failure to do so requires
that the case be remanded, as “[s]ubject matter
jurisdiction may not be waived, and . . . the district court
must remand if it lacks jurisdiction.” Kelton Arms
Condo. Owners Ass'n v. Homestead Ins. Co., 346 F.3d
1190, 1192 (9th Cir. 2003). “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).
review of the Notice of Removal and the state court records
provided, it is evident that the Court lacks subject matter
jurisdiction over the instant case. The underlying action is
an unlawful detainer proceeding, arising under and governed
by the laws of the State of California. The Complaint does
not include any claim “arising under the Constitution,
laws, or treaties of the United States.” 28 U.S.C.
§ 1331. Rather, removing Defendants asserted that the
affirmative defenses at issue give rise to federal question
jurisdiction. However, “the existence of federal
jurisdiction depends solely on the plaintiff's claims for
relief and not on anticipated defenses to those
claims.” ARCO Envtl. Remediation, L.L.C. v. Dept.
of Health and Envtl. Quality, 213 F.3d 1108, 1113 (9th
Cir. 2000). An “affirmative defense based on federal
law” does not “render an action brought in
state court removable.” Berg v. Leason, 32
F.3d 422, 426 (9th Cir. 1994). 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 admit that the defense is
the only question truly at issue in the case.”
Franchise Tax Bd. v. Constr. Laborers Vacation Tr.,
463 U.S. 1, 14 (1983).
have Defendants alleged facts sufficient to show that the
requirements for removal under 28 U.S.C. § 1443 are
satisfied. Section 1443(1) provides for the removal of a
civil action filed “[a]gainst 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 . . . .” Defendants removal purports
to “arise under Sixth and Fourteenth Amendment to the
United State [sic] Constitution for violations of the state
court's due process regulations.” (Dkt. 1.) Even
assuming that the removing defendants have asserted rights
provided “by explicit statutory enactment protecting
equal racial civil rights, ” Patel v. Del Taco,
Inc., 446 F.3d 996, 999 (9th Cir. 2006) (citation
omitted), Defendants have not identified any “state
statute or a constitutional provision that purports to
command the state courts to ignore the federal rights”
or pointed “to anything that suggests that the state
court would not enforce [defendants'] civil rights in the
state court proceedings.” Id. (citation
omitted); see also Bogart v. California, 355 F.2d
377, 381-82 (9th Cir. 1966) (holding that conclusionary
statements lacking any factual basis cannot support removal
under § 1443(1)). Nor does § 1443(2) provide any
basis for removal, as it “confers a privilege of
removal only upon federal officers or agents and those
authorized to act with or for them in affirmatively executing
duties under any federal law providing for equal civil
rights” and on state officers who refuse to enforce
discriminatory state laws. City of Greenwood v.
Peacock, 384 U.S. 808, 824 & 824 n.22 (1966).
jurisdiction is lacking, and the case is not removable on
that basis either. Every defendant is not alleged to be
diverse from every plaintiff, as the Complaint alleges the
Plaintiff is a citizen of California and Defendants state in
the Notice of Removal that they are citizens of California as
well. 28 U.S.C. §§ 1332(a), 1441(b)(2). Moreover,
the Complaint does not allege damages in excess of $75, 000,
and removing Defendants have not plausibly alleged that the
amount in controversy requirement has been met. Id.;
see Dart Cherokee Basin Operating Co. v. Owens, 135
S.Ct. 547, 554 (2014). The underlying unlawful detainer
action is a limited civil action that does not exceed $25,
 Failure to file an opposition within
the deadline may be deemed consent to the granting or denial
of the motion. L.R. 7-12.
 Defendants removed this action long
after the 30 day deadline to file a motion to remove the
action passed. See 28 U.S.C. § 1441.
Defendants' Notice of Removal states that it was timely
filed given that “defendant has not been properly
served with a ...