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Imperato v. Mitchell

United States District Court, E.D. California

June 27, 2019

DAYLE ANN IMPERATO, Plaintiff,
v.
KRISTA MITCHELL, Defendant. DAYLE ANN IMPERATO, Plaintiff,
v.
KELLY MITCHELL, Defendant.

          MEMORANDUM AND ORDER

          WILLIAM B.SHUBB, UNITED STATES DISTRICT JUDGE.

         Plaintiff 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, [1] and 28 U.S.C. § 1455. (Krista Mitchell Docket No. 1; Kelly Mitchell Docket No. 1.) Defendants now move for summary judgment in both cases.[2] (Krista Mitchell Docket No. 7; Kelly Mitchell Docket No. 8.)

         I. Background

         Early 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.)[3] In light of these decisions in state court, defendants move for summary judgment.

         II. Discussion

         While 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 (2012).

         A. Removal Under 28 U.S.C. § 1443

         For 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 (1975).

         Here, 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.

         Accordingly, it was improper to remove these cases to federal court under 28 U.S.C. § 1443.

         B. Removal Under 28 U.S.C. § 1441

         Removal 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).

         None of 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 curiam)).[4]

         Accordingly, the court finds that there was no basis to remove these actions to ...


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