United States District Court, E.D. California
WILMINGTON SAVINGS FUND SOCIETY, FSB d/b/a CHRISTIANA TRUST, not individually but as trustee for Pretium Mortgage Acquisition Trust Plaintiff,
NANCY A. THOMPSON; and DOES 1 to 6, inclusive, Defendants.
ORDER SUA SPONTE REMANDING CASE TO KERN COUNTY
SUPERIOR COURT AND DENYING MOTION TO PROCEED IN FORMA
PAUPERIS AS MOOT (DOC. NOS. 1, 3)
an unlawful detainer action brought under California state
law by plaintiff Wilmington Savings Fund Society
(“plaintiff”) against defendant Nancy Thompson.
On December 17, 2019, defendant removed this case to this
federal court from the Kern County Superior Court. (Doc. No.
1.) According to defendant, removal is proper because
plaintiff's unlawful detainer action violates the U.S.
Constitution and federal fair housing and antidiscrimination
laws. (Id. at 6.) Defendant filed a motion to
proceed in forma pauperis on the same date, December
17, 2019. (Doc. No. 3.)
district court has “a duty to establish subject matter
jurisdiction over the removed action sua sponte,
whether the parties raised the issue or not.”
United Investors Life Ins. Co. v. Waddell &
Reed, Inc., 360 F.3d 960, 967 (9th Cir. 2004). The
removal statute, 28 U.S.C. § 1441, is strictly construed
against removal jurisdiction. Geographic Expeditions,
Inc. v. Estate of Lhotka, 599 F.3d 1102, 1107 (9th Cir.
2010); Provincial Gov't of Marinduque v. Placer Dome,
Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). It is
presumed that a case lies outside the limited jurisdiction of
the federal courts, and the burden of establishing the
contrary rests upon the party asserting jurisdiction.
Geographic Expeditions, 599 F.3d at 1106-07;
Hunter v. Philip Morris USA, 582 F.3d 1039, 1042
(9th Cir. 2009). In addition, “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, LLC v. Dep't
of Health & Envtl. Quality, 213 F.3d 1108, 1113 (9th
Cir. 2000). “The strong presumption against removal
jurisdiction” means that “the court resolves all
ambiguity in favor of remand to state court.”
Hunter, 582 F.3d at 1042; Gaus v. Miles,
Inc., 980 F.2d 564, 566 (9th Cir. 1992). That is,
federal jurisdiction over a removed case “must be
rejected if there is any doubt as to the right of removal in
the first instance.” Geographic Expeditions,
599 F.3d at 1107; Duncan v. Stuetzle, 76 F.3d 1480,
1485 (9th Cir. 1996); Gaus, 980 F.2d at 566.
“If at any time prior to judgment it appears that the
district court lacks subject matter jurisdiction, the case
shall be remanded.” 28 U.S.C. § 1447(c);
Gibson v. Chrysler Corp., 261 F.3d 927, 932 (9th
Cir. 2001). Remand under 28 U.S.C. § 1447(c) “is
mandatory, not discretionary.” Bruns v. NCUA,
122 F.3d 1251, 1257 (9th Cir. 1997); see also California
ex. rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th
Cir. 2004). Where it appears, as it does here, that the
district court lacks subject matter jurisdiction over a
removed case, “the case shall be remanded.” 28
U.S.C. § 1447(c).
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.”
California v. United States, 215 F.3d 1005, 1014
(9th Cir. 2000); see also Dynegy, 375 F.3d at 838;
Duncan, 76 F.3d at 1485. Under the well-pleaded
complaint rule, courts look to what “necessarily
appears in the plaintiff's statement of his own claim in
the bill or declaration, unaided by anything in anticipation
of avoidance of defenses which it is thought the defendant
may interpose.” California, 215 F.3d at 1014.
Accordingly, “a case may not be removed on the basis of
a federal defense . . . even if the defense is anticipated in
the plaintiffs complaint and both parties concede that the
federal defense is the only question truly at issue.”
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392
(1987); Wayne v. DHL Worldwide Express, 294 F.3d
1179, 1183 (9th Cir. 2002); see also Vaden v. Discover
Bank, 556 U.S. 49, 70 (2009) (“It does not suffice
to show that a federal question lurks somewhere inside the
parties' controversy, or that a defense or counterclaim
would arise under federal law.”).
defendant has not shown that removal of this action to this
federal court is appropriate. Plaintiffs complaint is a
straight-forward unlawful detainer action that is based
entirely on state law. As stated above, defendants rely
solely on a contemplated defense that rests on various
federal constitutional and statutory grounds in an attempt to
establish federal jurisdiction. Even assuming defendants can
assert such a defense, they cannot use that anticipated
defense as the basis for removal because the defensive
invocation of federal law cannot form the basis of this
court's jurisdiction. See Vaden, 556 U.S. at 70;
Caterpillar, 482 U.S. at 392; Wayne, 294
F.3d at 1183; California, 215 F.3d at 1014.
there is no federal question appearing in plaintiffs
complaint, defendants have failed to properly invoke this
court's jurisdiction. Remand to the Kern County Superior
Court is therefore appropriate and mandatory. 28 U.S.C.
§ 1447(c); Geographic Expeditions, 599 F.3d at
1107; Bruns, 122 F.3d at 1257.
1. This action is remanded forthwith to the Kern County
Superior Court, pursuant to 28 U.S.C. § 1447(c), for
lack of subject matter jurisdiction;
2. Defendant's motion to proceed in forma
pauperis (Doc. No. 3) is denied as moot in light of this
3. The Clerk of the Court is respectfully directed to close