United States District Court, S.D. California
(1) SUA SPONTE REMANDING THE CASE BACK TO SAN DIEGO SUPERIOR
COURT; (2) DENYING DEFENDANT'S MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS; AND (3) DENYING PLAINTIFF'S EX
PARTE APPLICATION FOR AN ORDER SHORTENING TIME ON MOTION TO
REMAND (Doc. Nos. 3, 5)
ANTHONY J. BATTAGLIA UNITED STATES DISTRICT JUDGE
Antoinette Roan, Derell McKelvey, and Tanisha Mackelvey
removed the current unlawful detainer case to federal court.
(Doc. No. 1.) Although no motion to remand has been filed,
the Court has a continuous duty to evaluate its jurisdiction
over cases. Fed.R.Civ.P. 12(g)(3). Thus, for the reasons
herein, the Court REMANDS this action back
to San Diego Superior Court and DENIES
Defendants' motion for leave to proceed in forma pauperis
as moot and DENIES Plaintiff's ex parte
application for an order shortening time on motion to remand
has authorized a defendant to remove a civil action from
state court to federal court. 28 U.S.C. §1441. However,
the removing party “always has the burden of
establishing that removal was proper.” Gaus v.
Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The
district court must remand any case previously removed from a
state court “if at any time before final judgment it
appears that the district court lacks subject matter
jurisdiction.” 28 U.S.C. §1447(c). Moreover, there
is a strong presumption against removal jurisdiction. Thus,
doubts as to whether the federal court has subject matter
jurisdiction must be resolved in favor of remand. See
Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996);
see also Gaus, 980 F.2d at 566 (“Federal
jurisdiction must be rejected if there is any doubt as to the
right of removal in the first instance.”).
Plaintiff has not moved the Court to remand, “a
district court's duty to establish subject matter
jurisdiction is not contingent upon the parties'
arguments.” See United Investors Life Ins. Co. v.
Waddell & Reed Inc., 360 F.3d 960, 966 (9th Cir.
2004). Courts may consider the issue sua sponte.
Demery v. Kupperman, 735 F.2d 1139, 1149 n.8 (9th
Cir. 1984). Indeed, the Supreme Court has emphasized that
“district courts have an ‘independent obligation
to address subject-matter jurisdiction sua
sponte.'” Grupo Dataflux v. Atlas Global
Grp., L.P., 541 U.S. 567, 593 (2004) (quoting United
States v. S. Cal. Edison Co., 300 F.Supp.2d 964, 972
(E.D. Cal. 2004)).
Notice of Removal asserts that this Court has jurisdiction
under 28 U.S.C. §§ 1331 and 1441. The federal
statute cited raises federal question jurisdiction. For the
reasons explained below, the Court does not have federal
question jurisdiction nor diversity jurisdiction over this
Defendants' current Notice of Removal is brought under 28
U.S.C. § 1331 alleging that there is federal question
jurisdiction. Specifically, Defendants simply state that a
“federal question exists because Defendant's
Demurrer, a pleading depend [sic] on the determination of
Defendant's rights and Plaintiffs duties under federal
law.” (Doc. No. 1 at 2.) However, Plaintiffs unlawful
detainer complaint does not establish federal question
jurisdiction. Defendants might assert a federal defense;
however, a federal defense alone is insufficient to establish
federal question jurisdiction. See Caterpillar, Inc. v.
Williams, 482 U.S. 386, 392 (1987). Furthermore,
diversity jurisdiction cannot be established as there is no
diversity of citizenship amongst the parties and the amount
in controversy is less than $75, 000.
Court does not have subject matter jurisdiction,
Defendants' motion to proceed in forma pauperis is moot
as well as Plaintiffs ex parte application for an order
shortening time on motion to remand.
Defendant cannot establish federal jurisdiction, removal was
improper. The Court REMANDS the case back to
San Diego Superior Court for lack of subject matter
jurisdiction, DENIES Defendants' motion
to proceed in forma pauperis as moot and
DENIES Plaintiffs ex parte application for
an order shortening time on motion to remand as moot. The
Court Clerk is ordered to then close the case.
IS SO ORDERED.