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Pennington v. Abrego

United States District Court, N.D. California

February 7, 2018

JEROME C PENNINGTON, et al., Plaintiffs,
MANUEL ABREGO, et al., Defendants.



         Defendants Manuel Abrego and Luciana Abrego Torres (“Defendants”) return to this Court after a short absence. In December 2017, Defendants removed an unlawful detainer action from Monterey County Superior Court. Pennington v. Abrego (Abrego I), 17-cv-7151-EJD. Judge Davila remanded the case to state court earlier this week, but Defendants are back. They filed a new, mostly identical notice of removal and seek leave from the Court to proceed in forma pauperis (“IFP”). The Court grants the IFP application, but recommends that the matter be remanded again to state court for lack of subject matter jurisdiction.

         A court may authorize the commencement of a civil action in forma pauperis if the court is satisfied that the applicant cannot pay the requisite filing fees. 28 U.S.C. § 1915(a). In evaluating an IFP application, the court should “gran[t] or den[y] IFP status based on the [applicant's] financial resources alone and then independently determin[e] whether to dismiss the complaint on the grounds that it is frivolous. Franklin v. Murphy, 745 F.2d 1221, 1226 n.5 (9th Cir. 1984). A court may dismiss a case filed without the payment of the filing fee whenever it determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). Here, the Court is satisfied that Defendants qualify for IFP status. The IFP application is therefore granted. However, Defendants may not proceed because there is no federal subject matter jurisdiction over this matter.

         Removal to federal court is proper where the federal court would have original subject matter jurisdiction over the complaint. 28 U.S.C. § 1441. The removal statutes are strictly construed against removal and place the burden on the defendants to demonstrate that removal is proper. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). Additionally, the court has a continuing duty to determine whether it has subject matter jurisdiction. Fed.R.Civ.P. 12(h). A case must be remanded to the state court if it appears at any time before the final judgment that the court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c).

         Defendants fail to show that removal is proper based on any federal law. Federal courts have original jurisdiction over civil actions “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A claim “arises under” federal law if, based on the “well-pleaded complaint rule, ” the plaintiff alleges a federal claim for relief. Vaden v. Discovery Bank, 129 S.Ct. 1262, 1272 (2009). Defenses and counterclaims asserting a federal question do not satisfy this requirement. Id. Here, Defendants seem to contend that federal question jurisdiction exists because the plaintiffs violated a federal statute, [1] and because “Defendant's demurrer, a pleading, depend on the determination of Defendant's rights and Plaintiff's duties under federal law.” Dkt. No. 1 at 2-3. Neither argument establishes federal jurisdiction. The complaint presents a claim arising only under state law, and allegations in a removal notice cannot provide this Court with federal question jurisdiction.

         Defendants also fail to show that removal is proper based on diversity jurisdiction. Federal district courts have jurisdiction over civil actions in which the matter in controversy exceeds the sum or value of $75, 000 (exclusive of interest and costs) and is between citizens of different states. 28 U.S.C. § 1332. A defendant who is a citizen of the state in which the case commenced may not remove based on diversity jurisdiction. 28 U.S.C. § 1441(b)(2). Here, Defendants claim they suffered damages exceeding $75, 000, but they do not allege that the parties are diverse. Defendants appear to live in Monterey County, where the plaintiffs filed the unlawful detainer action. Therefore, even if diversity exists, Defendants' California citizenship precludes diversity jurisdiction.

         The Court orders that this case be reassigned to a district judge, and recommends that the district judge remand the case to state court.

         Prior to the first remand, Magistrate Judge Cousins warned Defendants that removal for an improper purpose may lead to an assessment of costs under 28 U.S.C. § 1447(c). Abrego I, Dkt. No. 8. The Court reiterates that warning, and adds that a court may impose sanctions on a party who files a paper for “any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation[.]” Fed.R.Civ.P. 11(b)(1).

         IT IS SO ORDERED.



[1] Defendants cite to 12 U.S.C. ยง 5220, a provision in the Emergency Economic Stabilization Act of 2008 that deals with federal assistance to ...

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