United States District Court, N.D. California
ORDER GRANTING IFP APPLICATION ORDER REASSIGNING CASE
TO A DISTRICT JUDGE REPORT AND RECOMMENDATIONS
R. LLOYD UNITED STATES MAGISTRATE JUDGE
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.
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
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).
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,  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.
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
Court orders that this case be reassigned to a district
judge, and recommends that the district judge remand the case
to state court.
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).
 Defendants cite to 12 U.S.C. §
5220, a provision in the Emergency Economic Stabilization Act
of 2008 that deals with federal assistance to ...