United States District Court, S.D. California
Wells Fargo Bank, N.A., its assignees and/or successors Plaintiff,
Maribel Preciado; Ismael Rodriguez; and DOES 1-10 inclusive, Defendants.
ORDER: (1) GRANTING PLAINTIFF'S MOTION FOR
REMAND; (2) DENYING DEFENDANT'S REQUEST TO PROCEED IN
FORMA PAUPERIS; AND (3) FORBIDDING DEFENDANT FROM REMOVING
THIS ACTION (Doc. Nos. 3, 6.)
Anthony J. Battaglia United States District Judge
before the Court are Plaintiff Wells Fargo Bank, N.A.'s
(“Plaintiff”) motion to remand, (Doc. No. 6), and
Defendant's request to proceed in forma pauperis, (Doc.
No. 3). For the reasons herein, the Court
GRANTS Plaintiff's motion,
DENIES Defendant's request to proceed in
forma pauperis as moot, and REMANDS this
action to the San Diego Superior Court.
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
to 28 U.S.C. § 1446, a defendant must remove the action
within thirty days of receiving service of the summons and
complaint. Here, the summons and complaint were served on
October 24 and October 25, 2018. (Doc. No. 6-2 at 5.) The
removal was not filed until July 9, 2019. (Doc. No. 1.) This
is over eight months after the service of summons and
complaint. Therefore, the removal is untimely.
“[f]ederal jurisdiction typically exists only when a
federal question is presented on the face of the
plaintiff's properly pleaded complaint.” Valles
v. Ivy Hill Corp., 410 F.3d 1071, 1075 (9th Cir. 2005).
Here, as the Court has previously held, there is no federal
question jurisdiction because the unlawful detainer complaint
invokes California law. (See generally Doc. No.
1-3.) The complaint filed in state court solely concerns an
unlawful detainer action under California law and, thus,
presents no federal question. See Aurora Loan Servs., LLC
v. Montoya, No. 2:11-cv-2485-MCE-KJN-PS, 2011 WL
5508926, at *3 (E.D. Cal. Nov. 9, 2011) (“[P]laintiff
filed its Complaint in Superior Court asserting a single
claim for unlawful detainer premised solely on California
law. Because a claim for unlawful detainer does not by itself
present a federal question or necessarily turn on the
construction of federal law, no basis for federal question
jurisdiction appears on the face of the Complaint.”);
see also Sage Home Mortg., LLC v. Roohan, No.:
17-cv-1409-AJB-JMA, 2017 U.S. Dist. LEXIS 118119, at *4-5
(S.D. Cal. July 27, 2017) (holding federal jurisdiction does
not exist when a complaint alleges a single claim for
unlawful detainer which is a California state law cause of
action). Accordingly, federal question jurisdiction does not
jurisdiction is generally prohibited if any defendant is a
citizen of the state where the action is brought. 28 U.S.C.
§ 1441(b)(2). As the Court has previously held,
diversity jurisdiction also fails to provide this Court with
jurisdiction because at least one Defendant resides in
California. (See Doc. No. 1-3 at 2.) Thus, this
Court does not have subject matter jurisdiction on diversity
also argues that removal is proper under 28 U.S.C. §
1443 because the prosecution of the unlawful detainer action
in state court has violated his civil rights. The Ninth
A petition for removal under § 1443(1) must satisfy the
two-part test articulated by the Supreme Court in Georgia
v. Rachel, 384 U.S. 780, 788-92, 794-804 (1966) and
City of Greenwood, Miss. v. Peacock, 384 U.S. 808,
824-28 (1966). “First, the petitioners must assert, as
a defense to the prosecution, rights that are given to them
by explicit statutory enactment protecting equal racial civil
rights.” California v. Sandoval, 434 F.2d 635,
636 (9th Cir. 1970). “Second, petitioners must assert
that the state courts will not enforce that right, and that
allegation must be supported by reference to a state statute
or a constitutional provision that purports to command the
state courts to ignore the federal rights.”
Patel v. Del Taco, Inc., 446 F.3d 996, 998-99 (9th
Cir. 2006). Here, Defendant fails to satisfy either part of
this test. Defendant has not identified a state law
preventing him from raising his federal claims in state court
nor has he shown the basis for an equally firm prediction
that he will be unable to protect his federal rights in state
court. Accordingly, removal is improper under 28 U.S.C.
Court does not have jurisdiction and accordingly, this Court
GRANTS Plaintiff's motion to remand and
DENIES Defendant's IFP motion as moot.
Defendants cannot establish this Court has jurisdiction,
removal was improper. The Court GRANTS
Plaintiff's motion for remand, DENIES
Defendant's request to proceed in forma pauperis as moot,
and REMANDS this action to San Diego
Superior Court. This is the second time that Defendant has
sought removal of Plaintiff s action. The first case,
19-cv-00361-AJB-LL, was remanded on the same basis as the
current case. Based on this history, Defendant is
ORDERED not to remove or attempt to remove
this action again. If he does, he will be subject to
sanctions, including Plaintiffs attorney fees, or contempt