United States District Court, E.D. California
SUA SPONTE REMAND ORDER
L. NUNLEY, UNITED STATES DISTRICT JUDGE
matter is before the Court pursuant to Defendant Tearon P.
Moore's (“Defendant”) Notice of Removal and
Motion to Proceed in Forma Pauperis. (ECF Nos. 1-2.) For the
reasons set forth below, Defendant's Motion to Proceed in
Forma Pauperis (ECF No. 2) is DENIED as moot, and the Court
hereby REMANDS the action to the Superior Court of
California, County of Kern, due to lack of subject-matter
Factual and Procedural Background
September 19, 2019, Plaintiff Patricia May
(“Plaintiff”) brought an action for unlawful
detainer against Defendant for possession of the real
property known as 8036 Greenwood Avenue, California City,
California 93505 (“the Property”). (Notice of
Removal, ECF No. 1, at 6.) On December 3, 2019, Defendant
filed a Notice of Removal removing this unlawful detainer
action from the Kern County Superior Court. (ECF No. 1.)
Standard of Law
U.S.C. § 1441 permits the removal to federal court of
any civil action over which “the district courts of the
United States have original jurisdiction.” 28 U.S.C.
§ 1441(a). “Removal is proper only if the court
could have exercised jurisdiction over the action had it
originally been filed in federal court.”
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392
“strictly construe the removal statute against removal
jurisdiction, ” and “the defendant always has the
burden of establishing that removal is proper.”
Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.
1992) (per curiam). Furthermore, “[i]f the district
court at any time determines that it lacks subject matter
jurisdiction over the removed action, it must remedy the
improvident grant of removal by remanding the action to state
court.” California ex rel. Lockyer v. Dynegy,
Inc., 375 F.3d 831, 838, as amended, 387 F.3d 966 (9th
Cir. 2004), cert. denied 544 U.S. 974 (2005).
“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.”
Caterpillar, 482 U.S. at 386. Federal court
jurisdiction therefore cannot be based on a defense,
counterclaim, cross-claim, or third party claim raising a
federal question. See Vaden v. Discover Bank, 556
U.S. 49 (2009); Hunter v. Philip Morris USA, 582
F.3d 1039, 1042-43 (9th Cir. 2009).
removed the above-entitled action to this Court on the basis
of federal question jurisdiction. (ECF No. 1 at 2-3; see
also ECF No. 1-1.) Defendant argues that his Answer,
previously filed in state court, asserts an affirmative
defense that “depend[s] on the determination of
Defendant's rights and Plaintiff's duties under
federal law.” (ECF No. 1 at 2.) Even if the Court were
to assume that Defendant's asserted affirmative defenses
encompass a federal question, it is clear that the Complaint
itself contains only a single claim for unlawful detainer.
(ECF No. 1 at 5-8.) The instant Complaint therefore relies
solely on California state law and does not state any claims
under federal law. Based on the well-pleaded complaint rule
as articulated above, removal cannot be based on a defense,
counterclaim, cross-claim, or third-party claim raising a
federal question. Caterpillar Inc., 482 U.S. at 392;
see also Vaden, 556 U.S. at 49; Hunter v. Philip
Morris USA, 582 F.3d at 1042-43. Thus, while Defendant
seems to contend in the notice of removal that Plaintiff has
violated a federal law, this assertion relates only to an
affirmative defense or potential counterclaim, which cannot
be considered in evaluating whether a federal question
appears on the face of Plaintiff s Complaint. See
Vaden, 556 U.S. at 60-62.
short, because the state court Complaint indicates that the
only cause of action is one for unlawful detainer, which
arises solely under state law, this action does not arise
under federal law. There being no apparent grounds for
federal jurisdiction, it is appropriate to remand this case,
sua sponte, for lack of federal subject matter
jurisdiction. See United Investors Life Ins. Co. v.
Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir.
2004) (“the district court ha[s] a duty to establish
subject matter jurisdiction over the removed action sua
sponte, whether the parties raised the issue or
reasons stated above, Defendant's motion to proceed in
forma pauperis (ECF No. 2) is DENIED as moot, and the Court
hereby REMANDS this action to ...