United States District Court, S.D. California
MARK L. MILLER, Plaintiff,
YELLOW PAGES; YP; AT&T ADVERTISING; MCCARTHY, BURGESS & WOLF; YP ADVERTISING LP formerly known as AT&T Advertising L.P. doing business as AT&T Advertising Solutions as Successor In Interest to Pacific Bell Directory; FIRST COLLECTION SERVICES; “800-801-7311”; “844-266-2462”; and DOES 1-500, inclusive, Defendants.
William Q. Hayes United States District Court
November 6, 2017, Defendants Yellow Pages; YP; AT&T
Advertising; YP Advertising LP f/k/a AT&T Advertising
d/b/a/ AT&T Advertising Solutions as successor in
interest to Pacific Bell Directory; McCarthy, Burgess &
Wolf; and First Collection Services (the “removing
Defendants”) filed a Notice of Removal of Action from
the Superior Court of the State of California, County of San
Diego. (ECF No. 1). The Notice of Removal states
Pursuant to 28 US.C. § 1331, this Court has original
jurisdiction of this matter. This matter is one that
Defendant may remove to this Court pursuant to 28 U.S.C.
§ 1441(c) because the action is one arising under the
Constitution, laws, or treaties of the United States. 28
U.S.C. § 1331. More specifically, Plaintiff asserts
claims for violations of the United States Fair Debt
Collection Practices Act, 15 U.S.C. §§ 1692,
(ECF No. 1 at 3).
Plaintiff's Complaint references the FDCPA, the Complaint
does not bring a cause of action under the FDCPA and only
asserts causes of action arising under state law. On April 3,
2018, the Court issued an Order stating:
The removing Defendants are ORDERED TO SHOW CAUSE why this
action should not be remanded for lack of subject matter
jurisdiction. The removing Defendants shall file a response
to this Order no later than April 25, 2018. If the removing
Defendants fail to satisfy their burden of establishing that
subject matter jurisdiction exists, this action will be
remanded to the Superior Court of the State of California for
the County of San Diego where it was originally filed.
(ECF No. 10 at 3) (footnote omitted).
April 25, 2018, the removing Defendants filed a response to
the Order to Show Cause. (ECF No. 11).
response to the Order to Show Cause, the removing Defendants
contend that subject matter jurisdiction is proper because
Plaintiff asserts a claim for relief under the FDCPA and
seeks to recover damages under the FDCPA. The removing
Defendants contend that “[w]hile Plaintiff has labeled
each of his claims as a state law cause of action, these
labels are not determinative of jurisdiction” and
“Plaintiff has asserted multiple allegations indicating
that he seeks relief under the FDCPA.” Id. at
4. Further, the removing Defendants assert that
Plaintiff's claims raise a federal question because
alleged violations of the FDCPA form the basis of
Plaintiff's state law causes of action.
Congress has expressly provided otherwise, a defendant may
remove to federal court ‘any civil action brought in a
State court of which the district courts of the United States
have original jurisdiction.'” Dennis v.
Hart, 724 F.3d 1249, 1252 (9th Cir. 2013) (quoting 28
U.S.C. § 1441(a)). “Federal courts are required
sua sponte to examine jurisdictional issues.”
Bernhardt v. Cty. of Los Angeles, 279 F.3d 862, 868
(9th Cir. 2002) (quoting B.C. v. Plumas Unified Sch.
Dist., 192 F.3d 1260, 1264 (9th Cir. 1999)). At any time
during proceedings, a district court may sua sponte remand a
case to state court if the court lacks subject matter
jurisdiction. See 28 U.S.C. § 1447(c)
(“If at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the
case shall be remanded.”); Kenny v. Wal-Mart
Stores, Inc., 881 F.3d 786, 789-90 (9th Cir. 2018)
(“In essence, subject matter jurisdiction is the
touchstone for a district court's authority to remand
sua sponte.”). “The removal statute is
strictly construed, and any doubt about the right of removal
requires resolution in favor of remand.”
Moore-Thomas v. Alaska Airline, Inc., 553 F.3d 1241,
1244 (9th Cir. 2009) (citing Gaus v. Miles, Inc.,
980 F.2d 564, 566 (9th Cir. 1992)). The defendant bears the
burden of establishing that removal is proper. Gaus,
980 F.2d at 566.
presence or absence of federal-question jurisdiction is
governed by the well-pleaded complaint rule, which provides
that federal jurisdiction exists only when a federal question
is presented on the face of the plaintiff's properly
pleaded complaint.” Wayne v. DHL Worldwide
Express, 294 F.3d 1179, 1183 (9th Cir. 2002) (quoting
Caterpillar v. Williams, 482 U.S. 386, 392 (1987)).
“Federal courts may exercise federal-question
jurisdiction over an action in two situations. First and most
commonly, a federal court may exercise federal-question
jurisdiction if a federal right or immunity is ‘an
element, and an essential one, of the plaintiff's cause
of action.'” Provincial Gov't of Marinduque
v. Placer Dome, Inc., 582 F.3d 1083, 1086 (9th Cir.
2009) (quoting Franchise Tax Bd. v. Constr. Laborers
Vacation Trust for S. Cal., 463 U.S. 1, 11 (1983)).
“Second, a federal court may have such jurisdiction if
a state-law claim ‘necessarily raise[s] a stated
federal issue, actually disputed and substantial, which a
federal forum may entertain without disturbing any
congressionally-approved balance of federal and state
judicial responsibilities.'” Id. (quoting
Grable & Sons Metal Prod., Inc. v. Darue Eng'g
& Mfg., 545 U.S. 308, 314 (2005)). “Such a
federal issue must be ‘a substantial one, indicating a
serious federal interest in claiming the advantages thought
to be inherent in a federal forum.'” Id.
at 1086- 87 (quoting Grable, 545 U.S. at 313). The
“mere presence of a federal issue in a state cause of
action does not automatically confer federal question
jurisdiction.” Merrell Dow Pharms., Inc. v.
Thompson, 478 U.S. 804, 813 (1986).
case, the removing Defendants assert that removal was proper
based on federal question jurisdiction. The removing
Defendants first contend that Plaintiff asserts a claim for
relief under the FDCPA even though “he has labeled each
of his claims as a state law cause of action.” (ECF No.
11 at 4). Defendants rely on Cox v. Superior Court,
205 Cal.Rptr.3d 188 (Ct. App. 2016) in support of their
argument that Plaintiff's labeling of his causes of
action is not determinative of jurisdiction. In Cox,
a state appellate court addressed whether the trial court had
the authority to construe a civil complaint filed by a
prisoner as a habeas corpus petition. The appellate court
stated that “[a] court has authority to treat one type
of writ petition as another type when it is procedurally
appropriate to do so” but held that “deeming a
civil complaint to be a habeas corpus proceeding is not an
appropriate remedy to ensure a prisoner's access to court
when the civil complaint seeks damages which are
inappropriate or unavailable in a habeas corpus
proceeding.” Id. at 191-92.
is not binding authority on this Court and is procedurally
distinguishable from this case in which the Court must
determine whether it can properly exercise federal subject
matter jurisdiction based on the allegations of
Plaintiff's well-pleaded complaint. Further, Plaintiff
clearly identifies each cause of action he asserts against
Defendants and all arise under state law. Plaintiff brings
the following causes of action: negligence; breach of
illusory contract; fraud; violation of California's
Rosenthal Fair Debt Collection Practices Act
(“Rosenthal Act”), California Civil Code section
1788, et seq.; violation of California's Unfair
Competition Law (“UCL”), California Business
& Professions Code section 17200 et seq.; and,
intentional infliction of emotional distress. The Complaint
does not bring a cause of action under the FDCPA or any other
federal cause of action. See Caterpillar, 482 U.S.
at 392 (“The [well-pleaded complaint] rule makes the
plaintiff the master of the claim; he or she may avoid