United States District Court, E.D. California
SUA SPONTE ORDER REMANDING ACTION TO STATE
A. Mendez United States District Court Judge.
undersigned revokes any actual or anticipated referral to a
Magistrate Judge for the purposes of Findings and
Recommendations in this case. See Local Rule 302(d)
(“Notwithstanding any other provision of this Rule, a
Judge may retain any matter otherwise routinely referred to a
November 8, 2019, Defendant Theresa Duncan filed a Notice of
Removal with this Court, seeking to remove an action from San
Joaquin County Superior Court. See Case No.
2:19-cv-2256. The Court sua sponte remanded the case to San
Joaquin County Superior Court because it lacked
subject-matter jurisdiction. Id. On November 12,
2019, Duncan filed a new, but nearly identical, Notice of
Removal with this Court. ECF No. 1. For the following
reasons-the same reasons previously set forth-the Court sua
sponte REMANDS this case to San Joaquin County Superior
28 U.S.C. § 1441(a), a defendant may remove an action to
federal court if the district court has original
jurisdiction. Hunter v. Phillip Morris USA, 582 F.3d
1039, 1042 (9th Cir. 2009) (quoting Ansley v. Ameriquest
Mortg. Co., 340 F.3d 858, 861 (9th Cir. 2003)). 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). Generally, a defendant
seeking to remove an action to federal court must file a
notice of removal within thirty days of receiving a copy of
the initial pleading. 28 U.S.C. § 1446(b). A defendant
seeking removal of an action to federal court has the burden
of establishing federal jurisdiction in the case.
California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d
831, 838 (9th Cir. 2004).
courts are courts of limited jurisdiction and lack inherent
or general subject matter jurisdiction. Federal courts can
adjudicate only those cases authorized by the United States
Constitution and Congress. Generally, those cases involve
diversity of citizenship or a federal question, or cases in
which the United States is a party. Kokkonen v. Guardian
Life Ins. Co., 511 U.S. 375 (1994); Finley v. United
States, 490 U.S. 545 (1989). Federal courts are
presumptively without jurisdiction over civil actions.
Kokkonen, 511 U.S. at 377. Lack of subject matter
jurisdiction is never waived and may be raised by the Court
sua sponte. Attorneys Trust v. Videotape Computer Prods.,
Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).
“Nothing is to be more jealously guarded by a court
than its jurisdiction. Jurisdiction is what its power rests
upon. Without jurisdiction it is nothing.” In re
Mooney, 841 F.2d 1003, 1006 (9th Cir. 1988).
Ninth Circuit has held that the removal statute should be
strictly construed in favor of remand and against removal.
Harris v. Bankers Life and Cas. Co., 425 F.3d 689,
698 (9th Cir. 2005). The “strong presumption”
against removal jurisdiction means that the defendant always
has the burden of establishing that removal is proper.
Nishimoto v. Federman-Bachrach & Assocs., 903
F.2d 709, 712 n.3 (9th Cir. 1990); Emrich v. Touche Ross
& Co., 846 F.2d 1190, 1195 (9th Cir. 1988). Federal
jurisdiction must be rejected if there is any doubt as to the
right of removal in the first instance. Gaus v. Miles,
Inc., 980 F.2d 564, 566 (9th Cir. 1992).
attempts to remove an unlawful detainer action based on
federal subject matter jurisdiction. She appears to argue two
bases of federal jurisdiction: (1) 28 U.S.C. §
1442(a)(1); and (2) 28 U.S.C. § 1331. Notice of Removal
at 2. Defendant first argues “[r]emoval [is]
jurisdictionally proper under 28 U.S.C. § 1442(a)(1),
because Federal Defendant U.S. Election Assistance Commission
is an agency ofthe United States.” Id.
However, Plaintiff did not name the Election Assistance
Commission as a defendant in his unlawful detainer action, so
this argument is unavailing.
Defendant failed to show Plaintiff's unlawful detainer
action arises under federal law. The complaint filed in state
court contains a single cause of action for unlawful detainer
based on California Code of Civil Procedure § 1161a.
Unlawful detainer actions are strictly within the province of
state court. A defendant's attempt to create federal
subject matter jurisdiction by adding claims or defenses to a
notice of removal will not succeed. Vaden v. Discover
Bank, 556 U.S. 49, 50 (2009) (federal question
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, even if the defense is that of federal
preemption and is anticipated in the plaintiff's
determining the presence or absence of federal jurisdiction
in removal cases, the “well-pleaded complaint
rule” applies, “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). Moreover, “it is well established
that plaintiff is the ‘master of her complaint' and
can plead to avoid federal jurisdiction.”
Lowdermilk v. U.S. Bank Nat'l Ass'n, 479
F.3d 994, 998-99 (9th Cir. 2007); Metro. Life Ins. Co. v.
Taylor, 481 U.S. 58, 63 (1987) (citing Gully v.
First Nat'l Bank, 299 U.S. 109 (1936)) (“It is
long settled law that a cause of action arises under federal
law only when the plaintiff's well-pleaded complaint
raises issues of federal law.”).
complaint raises a single state law claim. The face of a
properly-pled state law unlawful detainer action does not
present a federal question. Therefore, Plaintiff's
complaint avoids federal question jurisdiction. Defendant
cannot inject a federal issue through her answer or demurrer.
1. This action is remanded forthwith to the San Joaquin
County Superior Court for lack of subject matter
2. The Clerk of the Court is directed to close ...