United States District Court, S.D. California
William Q. Hayes United States District Judge
matters before the Court are 1) the Motion to Remand filed by
Plaintiff Mark Christopher Gilles (ECF No. 6); and 2) the
Amended Motion to Dismiss filed by Defendants City of San
Diego (the “City”), the San Diego Police
Department (“SDPD”), SDPD Officer Stephen Hickox,
and SDPD Officer Dominic Collins (ECF No. 7).
7, 2019, Plaintiff filed a Complaint in the Superior Court of
the State of California, County of San Diego, against the
City, SDPD, Officer Hickox, and Officer Collins. (ECF No.
1-2). In the Complaint, Plaintiff alleges that on April 1,
2019, he “set out to conduct a Fourth Amendment audit
of the San Diego Police Department's field officers . . .
.” Id. ¶ 26. Plaintiff alleges that he
procured two aluminum cans to use as “bait.”
Plaintiff rinsed the cans clean and filled one can, labeled
“MICKEY'S BEER, ” with cream soda.
Id. ¶¶ 27-28. Plaintiff took the cans with
him to the “Sea Wall” near 1900 Abbot Street in
Ocean Beach at approximately 6:00 p.m. Id. ¶
32. About ten minutes later, Officers Hickox and Collins
approached him, and Plaintiff “felt apprehensively
compelled” to provide Officer Hickox with two expired
forms of identification. Id. ¶¶ 32-34.
Plaintiff alleges that Officer Hickox “ran a
non-consensual check for wants and warrants” then
“aggressively seized the aluminum can” and poured
its contents into the sand. Id. ¶¶ 34-35.
Plaintiff alleges that Officer Hickox cited Plaintiff for
having two open containers of beer in violation of San Diego
Municipal Code section 63.20.13. Id. ¶ 38.
Plaintiff alleges that Officer Hickox provided Plaintiff with
a notice to appear in court, which “Plaintiff signed,
Under Duress” Id. ¶ 41. Plaintiff also
alleges that he owns the copyright to an original,
unpublished work, titled “MARK CHRISTOPHER GILLES;
DEARBORN . . . The Man With 2 Family Names . . . Or Is It
3?”. Id. ¶ 108, 112.
brings claims for 1) deprivation of rights under 42 U.S.C.
§ 1983 against Officers Hickox and Collins; 2)
conspiracy under 42 U.S.C. § 1985 against Officers
Hickox and Collins; 3) deprivation of rights under §
1983 (Monell) against the City and SDPD; 4)
copyright infringement against all Defendants; 5) conversion
of personal property against all Defendants; and 6) violation
of California's Unfair Competition Law
(“UCL”), California Business & Professions
Code sections 17200 et seq., against all Defendants. (ECF No.
1-2). Plaintiff seeks damages, including punitive damages; a
preliminary and permanent injunction; a declaration that the
City's “officially sanctioned policy is
unconstitutional;” a declaration that SDPD's
“de facto policy, of making any arrest that SDPD
officers know is not in accordance with law, is
unconstitutional;” restitution and costs; and any other
relief to which Plaintiff may be entitled. Id.
7, 2019, Defendants removed Plaintiff's state court
action to this Court pursuant to 28 U.S.C. §§ 1331
and 1441(a) and (c). (ECF No. 1 at 2). On July 11, 2019,
Plaintiff filed a Motion to Remand this action to state
court. (ECF No. 6). On August 2, 2019, Defendants filed a
Response in Opposition to Plaintiff's Motion to Remand.
(ECF No. 11). Plaintiff did not file a reply.
12, 2019, Defendants filed an Amended Motion to Dismiss
Plaintiff's Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). (ECF No. 7). On July 29, 2019, Plaintiff
filed a Response in Opposition to Defendants' Motion to
Dismiss. (ECF No. 10). On August 5, 2019, Defendants filed a
Reply. (ECF No. 12). On August 12, 2019, Plaintiff filed a
Sur-Reply. (ECF No. 14).
MOTION TO REMAND
contends that the Court should remand this action to state
court, because “Plaintiff chose to assert his claims .
. . in the San Diego Superior Court.” (ECF No. 6 at
6-7). Plaintiff contends that Defendants removed this action
to cause unnecessary delay or prejudice Plaintiff.
Id. at 7. Defendants contend that removal was proper
because seven of Plaintiff's eight causes of action could
have originally been filed in the district court. (ECF No. 11
at 3). Specifically, Defendants contend that the Court has
original jurisdiction over Plaintiff's § 1983 and
§ 1985 claims pursuant to 28 U.S.C. § 1331.
Id. at 2-3. Defendants contend that the Court has
exclusive jurisdiction over Plaintiff's copyright
infringement claim and original jurisdiction over
Plaintiff's related unfair competition claim, pursuant to
28 U.S.C. § 1338. Defendants contend the Court may
properly exercise supplemental jurisdiction over
Plaintiff's state law conversion claim, because “it
arises from the same set of facts as the removable claims and
its outcome relies on Plaintiff's intellectual property
claim.” Id. at 3.
28 U.S.C. § 1441, a defendant may remove an action filed
in state court to federal court if the federal court would
have original subject matter jurisdiction over the
action.” Moore-Thomas v. Alaska Airlines,
Inc., 553 F.3d 1241, 1243 (9th Cir. 2009); see
28 U.S.C. § 1441(a). Federal jurisdiction must exist at
the time the complaint is filed and at the time removal is
effected. Strotek Corp. v. Air Transp. Ass'n of
Am., 300 F.3d 1129, 1131 (9th Cir. 2002). A party can
challenge removal based on lack of subject matter
jurisdiction through a motion to remand. 28 U.S.C. §
1447. There is a “strong presumption against
removal” such that the removing party “always has
the burden of establishing that removal is proper.”
Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.
1992). “The removal statute is strictly construed, and
any doubt about the right of removal requires resolution in
favor of remand.” Moore-Thomas, 553 F.3d at
28 U.S.C. § 1331, district courts “have original
jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”
District courts have original and exclusive jurisdiction
“of any civil action arising under any Act of Congress
relating to . . . copyrights . . . .” 28 U.S.C. §
1338(a). District courts also have original jurisdiction
“of any civil action asserting a claim of unfair
competition when joined with a substantial and related claim
under the copyright . . . laws.” 28 U.S.C. §
courts have supplemental jurisdiction over state law claims
that are so related to the federal claims that they form part
of the same case or controversy. 28 U.S.C. § 1367(a).
“A state law claim is part of the same case or
controversy when it shares a common nucleus of operative fact
with the federal claims and the state and federal claims
would normally be tried together.” Bahrampour v.
Lampert, 356 F.3d 969, 978 (9th Cir. 2004) (quotation
omitted). A district court may decline to exercise
supplemental jurisdiction over a state law claim if:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or
claims over which the district court has original
(3) the district court has dismissed all claims over which it
has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.
28 U.S.C. § 1367(c). The court, however, “is not
required to make a § 1367(c) analysis unless asked to do
so by a party.” Acri v. Varian Assocs., Inc.,
114 F.3d 999, 1000 (9th Cir. 1997) (en banc).
alleges violations of 28 U.S.C. §§ 1983 and 1985 in
his first through fifth causes of action. These are claims
under federal laws, which this Court has original subject
matter jurisdiction over pursuant to § 1331. See
also 28 U.S.C. § 1343 (a district court has
original jurisdiction over acts done in furtherance of a
conspiracy alleged pursuant to § 1985). This Court has
exclusive jurisdiction over Plaintiff's sixth cause of
action for copyright infringement under the federal Copyright
Act pursuant to § 1338. Plaintiff's ability to
recover for alleged UCL violations in the eighth cause of
action depends on Plaintiff's copyright infringement
claim. See ECF No. 1-2 ¶ 174 (alleging that
Defendants violated California's UCL through their
“unauthorized use of the main essence of
Plaintiff's copyrighted Work . . .”). The Court has
original jurisdiction over Plaintiff's eighth cause of
action under the UCL, because it is joined with
Plaintiff's copyright infringement claim.
seventh cause of action for state law conversion rests on the
allegation that Defendants “substantially interfered
with Plaintiff['s] . . . property by attempting
infringement of the main essence” of Plaintiff's
copyrighted work. Id. ¶ 162. Plaintiff's
conversion claim is based on the same facts as
Plaintiff's copyright infringement claim; the claims
share a common nucleus of operative fact. Plaintiff's
state law conversion claim is, therefore, “part of the
same case or controversy” as Plaintiff's copyright
infringement and UCL claims. The Court may properly exercise
supplemental jurisdiction over Plaintiff's seventh cause
was proper under § 1441 because the Court has original
jurisdiction over seven of Plaintiff's causes of action
and supplemental jurisdiction over the remaining claim.
Plaintiff has not asserted a proper basis for this Court to
remand the action to state court. Plaintiff's Motion to
Remand is denied.
MOTION TO DISMISS
move to dismiss Plaintiff's Complaint on the grounds that
Plaintiff fails to state a claim upon which relief can be
granted pursuant to Federal Rule ...