United States District Court, E.D. California
MEMORANDUM AND ORDER
WILLIAM B.SHUBB, UNITED STATES DISTRICT JUDGE.
Dayle Imperato initiated these actions seeking temporary
restraining orders against defendants Krista Mitchell and
Kelly Mitchell. Defendants removed both cases to this court
under 28 U.S.C. § 1443, 28 U.S.C. § 1331,
28 U.S.C. § 1455. (Krista Mitchell Docket No. 1; Kelly
Mitchell Docket No. 1.) Defendants now move for summary
judgment in both cases. (Krista Mitchell Docket No. 7; Kelly
Mitchell Docket No. 8.)
in February 2019, plaintiff sought temporary restraining
orders against both defendants. (Krista Mitchell Docket No.
1; Kelly Mitchell Docket No. 1.) Plaintiff alleged that she
was concerned for her safety and well-being after the parties
became involved in a disagreement over a rental property that
plaintiff was leasing to these defendants. (Id.) The
Sacramento Superior Court granted plaintiff's requests
for temporary restraining orders on February 13, 2019 and
scheduled a hearing for March 8, 2019 to determine whether
these restraining orders would be made permanent. (See
Defs.' Req. for Judicial Notice Exs. D1 & D2 (Krista
Mitchell Docket No. 7-2; Kelly Mitchell Docket No. 8-2).)
Defendants, however, removed these cases to this court on
March 7, 2019. (Krista Mitchell Docket No. 1; Kelly Mitchell
Docket No. 1.) Despite the case being removed, the Superior
Court conducted a hearing in both cases on March 8, 2019 and
denied plaintiff's request to make these temporary
restraining orders permanent. (See Defs.' Req. for
Judicial Notice Exs. D3 & D4.) In light of these decisions
in state court, defendants move for summary judgment.
federal law sets the conditions under which a defendant may
remove state court proceedings to federal court,
“defendant[s] seeking removal ha[ve] the burden to
establish that removal is proper and any doubt is resolved
against removability.” See Luther v. Countrywide
Home Loans Servicing LP, 533 F.3d 1031, 1034 (9th Cir.
2008). Similarly, removal statutes are construed against
removal. Id. “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). Because the lack of subject-matter
jurisdiction is never waived or forfeited, the court may
determine that it lacks subject-matter jurisdiction sua
sponte. See Gonzales v. Thaler, 565 U.S. 134, 141
Removal Under 28 U.S.C. § 1443
their cases to be removable under Section 1443, defendants
(1) “must assert, as a defense to the prosecution,
rights that are given to them by explicit statutory enactment
protecting equal racial civil rights” and (2)
“must assert that the state courts will not enforce
that right, and that allegation must be supported by
reference to a state statute or constitutional provision that
purports to command the state courts to ignore the federal
rights.” See Patel v. Del Taco, Inc., 446 F.3d
996, 999 (9th Cir. 2006) (quoting Cal. v. Sandoval,
434 F.2d 635, 636 (9th Cir. 1970)). Only in an “unusual
case” will defendants be able to demonstrate that the
state court will be unable to enforce their federal civil
rights. Johnson v. Mississippi, 421 U.S. 213, 219
defendants simply assert that California Code of Civil
Procedure § 527.6 commands California state courts to
ignore defendants' federal civil rights under 42 U.S.C.
§§ 1981(a) & 1983. The mere “recitation
of the language of the relevant statutory language is not
sufficient to qualify as the type of ‘unusual case'
meriting removal to federal court pursuant to 28 U.S.C.
§ 1443(1).” See City of Elk Grove v. Elk Grove
Animal Rescue, No. 2:19-cv-439 TLN KJN, 2019 WL 1238815,
at *3 (E.D. Cal. Mar. 18, 2019). Defendants have not
identified any specific language in the state statute
“that prohibits them from enforcing their civil rights
in state court.” Patel, 446 F.3d at 999. And they have
failed to “point to anything that suggests that the
state court would not enforce their civil rights in the state
court proceedings.” Id.
it was improper to remove these cases to federal court under
28 U.S.C. § 1443.
Removal Under 28 U.S.C. § 1441
is proper under Section 1441 in “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). Defendants argue that this court has
federal-question jurisdiction under 28 U.S.C. § 1331,
because they have alleged federal claims against plaintiff in
a different action: Mitchell v. Imperato, No.
2:19-cv-297 WBS EFB. “The 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.” Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987).
the federal provisions defendants rely on are implicated by
the underlying state-law proceedings at issue in these cases.
These proceedings involve the propriety of restraining orders
sought under California Code of Civil Procedure § 527.6.
Defendants cannot merely mention federal rights in their
notice of removal and thereby confer subject-matter
jurisdiction on this court. See City of Elk Grove, 2019 WL
1238815, at *4. That is because federal jurisdiction may not
rest upon any potential federal-law counterclaims or
defenses. See Vaden v. Discover Bank, 556 U.S. 49,
60 (2009) (Federal 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.”). Because no
federal question is “disclosed upon the face of the
complaint[s]” here, this court does not have
jurisdiction under 28 U.S.C. § 1331. See Provincial
Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d
1083, 1086 (9th Cir. 2009) (quoting Phillips Petroleum
Co. v. Texaco, Inc., 415 U.S. 125, 127-28 (1974) (per
the court finds that there was no basis to remove these
actions to ...