United States District Court, S.D. California
William Q. Hayes United States District Court
matter before the Court is Defendant's Motion for Leave
to Proceed in Forma Pauperis. (ECF No. 2).
12, 2019, Plaintiff Carmel Terrace, L.P. initiated this
action by filing a Complaint in the Superior Court of
California for the County of San Diego, assigned case number
37-2019-00036259-CL-UD-CTL, against Defendant James Downey.
(ECF No. 1-2 at 7).
December 10, 2019, Defendant filed a Notice of Removal. (ECF
No. 1). The same day, Defendant filed a Motion for Leave to
Proceed in Forma Pauperis. (ECF No. 2).
court has an independent duty to assess whether federal
subject matter jurisdiction exists. See United Investors
Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960,
967 (9th Cir. 2004) (stating that “the district court
had a duty to establish subject matter jurisdiction over the
removed action sua sponte, whether the parties raised the
issue or not”); accord Rains v. Criterion Sys.,
Inc., 80 F.3d 339, 342 (9th Cir. 1996). Because subject
matter jurisdiction may not be waived by the parties, a
district court must remand a removed case if it lacks
jurisdiction over the matter. Kelton Arms Condominium
Owners Ass'n, Inc. v. Homestead Ins. Co., 346 F.3d
1190, 1192 (9th Cir. 2003); accord Sparta Surgical Corp.
v. Nat'l Ass'n of Sec. Dealers, Inc., 159 F.3d
1209, 1211 (9th Cir. 1998); see also 28 U.S.C.
§ 1447(c) (“If at any time before final judgment
it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”).
The federal removal statute provides, in relevant part:
Except as otherwise expressly provided by Act of Congress,
any civil action brought in a State court of which the
district courts of the United States have original
jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending.
28 U.S.C. § 1441(a). “The defendant bears the
burden of establishing that removal is proper.”
Provincial Gov't of Marinduque v. Placer Dome,
Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). “The
removal statute is strictly construed against removal
jurisdiction, ” id., and removal jurisdiction
“‘must be rejected if there is any doubt as to
the right of removal in the first instance'”
Geographic Expeditions, Inc. v. Estate of Lhotka,
599 F.3d 1102, 1106 (9th Cir. 2010) (quoting Gaus v.
Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per
courts have federal question jurisdiction over “all
civil actions that arise under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331.
“A case ‘arises under' federal law either
where federal law creates the cause of action or ‘where
the vindication of a right under state law necessarily
turn[s] on some construction of federal law.'”
Republican Party of Guam v. Gutierrez, 277 F.3d
1086, 1088-89 (9th Cir. 2002) (modification in original)
(citing Franchise Tax Bd. v. Constr. Laborers Vacation
Trust, 463 U.S. 1, 8-9 (1983)). “[T]he presence or
absence of federal-question jurisdiction is governed by the
‘well-pleaded complaint rule,' which provides that
federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff's properly pleaded
complaint.” Placer Dome, Inc., 582 F.3d at
1091; Ultramar Am. Ltd. v. Dwelle, 900 F.2d 1412,
1414 (9th Cir. 1990) (“Ordinarily, the existence of
federal question jurisdiction is determined from the face of
the complaint.”). “In determining the existence
of removal jurisdiction, based upon a federal question, the
court must look to the complaint as of the time the removal
petition was filed. Jurisdiction is based on the complaint as
originally filed” Abada v. Charles Schwab &
Co., 300 F.3d 1112, 1117 (9th Cir. 2002) (citation and
quotation marks omitted). The Supreme Court has held that
“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.”
Rivet v. Regions Bank, 522 U.S. 470, 475 (1998)
(citing Franchise Tax Bd. Of Cal. v. Construction
Laborers Vacation Trust for Southern Cal., 463 U.S. 1,
14 (1983)). The federal element must be “direct and
essential” to the claim, as opposed to
“incidental” or “attenuated.”
Berg v. Leason, 32 F.3d 422, 424 (9th Cir. 1994).
contends that there is “original jurisdiction over the
Unlawful Detainer Action because it is a federally related
action under the Fair Debt Collections Practices Act.”
(ECF No. 1 at 2-3). The underlying state action is based upon
state law. The only claim Plaintiff asserts is for unlawful
detainer. Plaintiff does not state any federal causes of
action or prayers for relief. The federal element is not
“direct and essential” to the claim and is
“incidental” or “attenuated.” See
Berg v. Leason, 32 F.3d 422, 424 (9th Cir. 1994). The
Court concludes that the underlying action does not include a
federal issue and that removal is not permitted.
HEREBY ORDERED that this action is REMANDED to the Superior
Court for the State of California, County of San Diego, where
it was originally ...