United States District Court, S.D. California
ORDER OF REMAND
Honorable Larry Alan Burns Chief United States District
City of National City removed this action from state court on
the basis of federal question jurisdiction. See 28
U.S.C. §§ 1331, 1441. The Court ordered the City to
show cause why this action should not be remanded.
(“Order to Show Cause, ” Docket no. 3.) The City
has now filed its response. (“Response, ” Docket
Court is always obligated to inquire into its own
jurisdiction, Chapman v. Pier 1 Imports (U.S.) Inc.,
631 F.3d 939, 954 (9th Cir. 2011) (en banc), and must confirm
its jurisdiction before deciding any issue on the merits.
See Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116
(9th Cir. 2004), This is particularly true in removed
actions, where the Court is obligated to remand if, at any
time, jurisdiction is lacking. 28 U.S.C. § 1447(c);
Smith v. Mylan Inc., 761 F.3d 1042, 1044 (9th Cir.
2014). There is a “strong presumption” against
removal, and the removing party always bears the burden of
showing that removal is proper. Gaus v. Miles, Inc.,
980 F.2d 564, 566 (9th Cir.1992) (citation omitted).
“Federal jurisdiction must be rejected if there is any
doubt as to the right of removal in the first
instance.” Id. And in any action, federal
jurisdiction is presumed to be lacking, until it is
affirmatively established. DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 342 n.3 (2006).
determining whether federal question is present, the Court
examines the complaint as it existed at the time of removal.
See Hunter v. Philip Morris USA, 582 F.3d 1039, 1042
(9th Cir. 2009). “The threshold requirement for removal
under 28 U.S.C. § 1441 is a finding that the complaint
contains a cause of action that is within the original
jurisdiction of the district court.” Id.
(further citations omitted). Under the “well-pleaded
complaint rule, ” federal question jurisdiction is
present only when a federal question is presented on the face
of the face of the plaintiff's properly pleaded
complaint. Caterpillar Inc. v. Williams, 482 U.S.
386, 392 (1987). The caveat that the complaint be
well-pleaded or properly pleaded means that a plaintiff
cannot avoid federal jurisdiction by “omitting from the
complaint federal law essential to his claim, or by casting
in state law terms a claim that can be made only under
federal law.” Rains v. Criterion Sys., Inc.,
80 F.3d 339, 344 (9th Cir.1996) (further citations omitted).
But otherwise, the plaintiff is master of its complaint, and
may plead its claims in a way that avoids federal
jurisdiction. California ex rel. Lockyer v. Dynegy,
Inc., 375 F.3d 831, 838-39 (9th Cir. 2004).
Court's Order to Show Cause pointed out, federal question
jurisdiction is not present in every case involving an appeal
to federal law or the U.S. Constitution. See Grable &
Sons Metal Prods., Inc. v. Darue Eng'g & Mfg.,
545 U.S. 308, 314 (2005). Federal question jurisdiction is
present only where a well-pleaded complaint shows either that
federal law creates the cause of action, or the
plaintiff's right to relief “necessarily depends on
a substantial question of federal law.” Armstrong
v. N. Mariana Islands, 576 F.3d 950, 954-55 (9th Cir.
2009). A right created by federal law “must be an
element, and an essential one, of the plaintiff's cause
of action.” Dynegy, 375 F.3d at 838 (quoting
Gully v. First Nat'l Bank in Meridian, 299 U.S.
109, 112 (1936)). “When a claim can be supported by
alternative and independent theories-one of which is a state
law theory and one of which is a federal law theory-federal
question jurisdiction does not attach because federal law is
not a necessary element of the claim.” Rains,
80 F.3d at 346.
complaint brings two causes of action, each based on multiple
theories. Some of the theories are federal in nature
(see, e.g., Compl., ¶¶ 27 (Commerce
Clause), 33 (Equal Protection Clause)), and some are based on
California statutory law. (See, e.g., id.,
¶¶ 36 (preemption by California Health & Safety
Code § 122354.5).) Some theories are alternatively
federal and state (see id., ¶¶ 31
(procedural due process under U.S. and California
constitution); or are ambiguous as to whether they arise
under federal law, state law, or both. (See id.,
¶ 28 (void for vagueness, ambiguous, arbitrary, and
discriminatory).) The first claim seeks an injunction
forbidding the ordinance from being enforced because it is
“unconstitutional, invalid and unenforceable”
(Compl., ¶ 25 and Prayer for Relief, ¶ 1), and the
second seeks a declaration that the ordinance is
“unconstitutional and/or otherwise invalid and
unenforceable[.]” (Id., ¶ 38 and Prayer
for Relief, ¶ 2.)
the Court directed the City's attention to several issues
that needed to be addressed, the City's Response fails to
Order to Show Cause pointed out, neither of Plaintiff's
claims arises under state law, and federal law is not an
essential element of either claim. Both are based on a
variety of theories, some federal and some state. Plaintiff
could prevail on both claims and obtain all the relief it is
seeking without any reference to federal law at all. By way
of example, a court could determine that the ordinance in
question violated procedural due process under the California
constitution (without reaching the federal due process
question), or that it was preempted by California Health
& Safety Code § 122354.5, and could enjoin the
ordinance and declare it invalid on either of these grounds
alone. While a court could reach federal questions
in order to decide all claims in Plaintiff's favor, it
need not do so. Because it need not reach questions of
federal law, federal law is not an essential element of
either of the claims.
Order to Show Cause also pointed out that the Complaint did
not identify federal law as creating either claim. The
Response does not point to any federal statute that would
authorize the claims Plaintiff is bringing, and none is
apparent. For example, neither claim can reasonably be
construed as a claim under 42 U.S.C. § 1983, because
each relies on both state and federal rights. See Ove v.
Gwinn, 264 F.3d 817, 824 (9th Cir. 2001) (§ 1983
claim can only be based on violation of federal law).
complaint as it stands is probably not properly pled under
California law. See Allen v. City of Sacramento, 234
Cal.App.4th 41, 65-66 (Cal.App. 3 Dist. 2015) (holding that
claim for an injunction forbidding the enforcement of an
ordinance was not, by itself, a cause of action). But the
Court looks to the Complaint as pled, not as Plaintiff might
have pled it. See Rains, 80 F.3d at 344. Any
pleading error could be corrected without creating federal
question jurisdiction, because Plaintiff did not rely on any
federal law (such as § 1983) as creating its claims, and
because federal law is not an essential element of either
Complaint makes clear Plaintiff believes the ordinance
violates several of Plaintiff's rights, and Plaintiff
wants it enjoined and declared unenforceable. The Complaint
treats various rights as theories, not separate claims.
Plaintiff is not, for example, seeking separate damages for
violations of particular rights, or treating violation of
each right as a separate cause of action. Rather, Plaintiff
wants only an injunction forbidding the ordinance's
enforcement and a declaration that the ordinance is
unenforceable for at least one of the reasons identified in
the complaint. In the Complaint as it stands now,
Plaintiff's right to relief ...