United States District Court, C.D. California
U.S. Bank Trust N.A., etc., Plaintiff,
Myron Hale, et al., Defendants.
ORDER REMANDING TO STATE COURT
D. WRIGHT, II UNITED STATES DISTRICT JUDGE
Court sua sponte REMANDS this
action to the California Superior Court for the County of Los
Angeles for lack of subject matter jurisdiction, as set forth
right of removal is entirely a creature of statute and
‘a suit commenced in a state court must remain there
until cause is shown for its transfer under some act of
Congress.'” Syngenta Crop Prot., Inc. v.
Henson, 537 U.S. 28, 32 (2002) (quoting Great N. Ry.
Co. v. Alexander, 246 U.S. 276, 280 (1918)). Generally,
where Congress has acted to create a right of removal, those
statutes are strictly construed against removal jurisdiction.
Id.; Nevada v. Bank of Am. Corp., 672 F.3d
661, 667 (9th Cir. 2012); Gaus v. Miles, Inc., 980
F.2d 564, 566 (9th Cir. 1992).
otherwise expressly provided by Congress, a defendant may
remove “any civil action brought in a State court of
which the district courts of the United States have original
jurisdiction.” 28 U.S.C. § 1441(a); Dennis v.
Hart, 724 F.3d 1249, 1252 (9th Cir. 2013). The removing
defendant bears the burden of establishing federal
jurisdiction. Abrego Abrego v. Dow Chem. Co., 443
F.3d 676, 682 (9th Cir. 2006); Gaus, 980 F.2d at
566-67. “Under the plain terms of § 1441(a), in
order properly to remove [an] action pursuant to that
provision, [the removing defendant] must demonstrate that
original subject-matter jurisdiction lies in the federal
courts.” Syngenta Crop Prot., 537 U.S. at 33.
Failure to do so requires that the case be remanded, as
“[s]ubject matter jurisdiction may not be waived, and .
. . the district court must remand if it lacks
jurisdiction.” Kelton Arms Condo. Owners Ass'n
v. Homestead Ins. Co., 346 F.3d 1190, 1192 (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).
It is “elementary that the subject matter jurisdiction
of the district court is not a waivable matter and may be
raised at anytime by one of the parties, by motion or in the
responsive pleadings, or sua sponte by the trial or
reviewing court.” Emrich v. Touche Ross &
Co., 846 F.2d 1190, 1194 n.2 (9th Cir. 1988).
review of the Notice of Removal and the state court records
provided, it is evident that the Court lacks subject matter
jurisdiction over the instant case, for the following
Federal Question Jurisdiction
basis for federal question jurisdiction has been identified
Complaint does not include any claim “arising under the
Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331.
defendant(s) asserts that the affirmative defenses at issue
give rise to federal question jurisdiction, but “the
existence of federal jurisdiction depends solely on the
plaintiff's claims for relief and not on anticipated
defenses to those claims.” ARCO Envtl. Remediation,
L.L.C. v. Dept. of Health and Envtl. Quality, 213 F.3d
1108, 1113 (9th Cir. 2000). An “affirmative defense
based on federal law” does not “render an
action brought in state court removable.” Berg v.
Leason, 32 F.3d 422, 426 (9th Cir. 1994). A “case
may not be removed to federal court on the basis of a federal
defense . . . even if the defense is anticipated in the
plaintiff's complaint, and even if both parties admit
that the defense is the only question truly at issue in the
case.” Franchise Tax Bd. v. Constr. Laborers
Vacation Tr., 463 U.S. 1, 14 (1983).
defendant(s) has not alleged facts sufficient to show that
the requirements for removal under 28 U.S.C. § 1443 are
satisfied. Section 1443(1) provides for the removal of a
civil action filed “[a]gainst any person who is denied
or cannot enforce in the courts of such State a right under
any law providing for the equal civil rights of citizens of
the United States . . . .” Even assuming that the
removing defendant(s) has asserted rights provided “by
explicit statutory enactment protecting equal racial civil
rights, ” Patel v. Del Taco, Inc., 446 F.3d
996, 999 (9th Cir. 2006) (citation omitted), defendant(s) has
not identified any “state statute or a constitutional
provision that purports to command the state courts to ignore
the federal rights” or pointed “to anything that
suggests that the state court would not enforce
[defendant's] civil rights in the state court
proceedings.” Id. (citation omitted); see
also Bogart v. California, 355 F.2d 377, 381-82 (9th
Cir. 1966) (holding that conclusionary statements lacking any
factual basis cannot support removal under § 1443(1)).
Nor does § 1443(2) provide any basis for removal, as it
“confers a privilege of removal only upon federal
officers or agents and those authorized to act with or for
them in affirmatively executing duties under any federal law
providing for equal civil rights” and on state officers
who refuse to enforce discriminatory state laws. City of
Greenwood v. Peacock, 384 U.S. 808, 824 & 824 n.22
jurisdiction is lacking, and this case is not removable on
that basis. Every defendant is not alleged to be diverse from
every plaintiff. 28 U.S.C. § 1332(a). The removing
defendant(s) has not plausibly alleged that the amount in
controversy requirement has been met. Id.; see Dart
Cherokee Basin Operating Co. v. Owens, 135 S.Ct. 547,
554 (2014). Removing defendant(s) is a citizen of California.
28 U.S.C. § 1441(b)(2).
the fourth attempt by defendant to remove the underlying
case, LASC 19STUD05004, to this Court. See U.S. Bank
Trust, N.A. v. Hale et al, 19-cv-06495-RGK (PLAx),
dism'd Aug. 6, 2019; U.S. Bank Trust, N.A.
v. Hale et al, 19-cv-6955-CAS (PLAx),
dism'd Aug. 14, 2019; U.S. ...