United States District Court, C.D. California
Present: The Honorable Fernando M. Olguin, United States
CIVIL MINUTES - GENERAL
(In Chambers) Order Remanding Action
November 12, 2019, defendant Lime Crime, Inc.
(“defendant”) removed this action on federal
question jurisdiction grounds pursuant to 28 U.S.C.
§§ 1331 and 1441. (See Dkt. 1, Notice of
Removal (“NOR”) at ¶¶ 3-4). Defendant,
however, failed to comply with the procedures for removal.
See 28 U.S.C. § 1446(a) (“A defendant or
defendants desiring to remove any civil action from a State
court shall file in the district court of the United States
for the district and division within which such action is
pending a notice of removal signed pursuant to Rule 11 of the
Federal Rules of Civil Procedure and containing a short and
plain statement of the grounds for removal, together with a
copy of all process, pleadings, and orders served upon such
defendant or defendants in such action.”).
Specifically, defendant did not file a copy of the
state-court complaint with its Notice of Removal.
(See, generally, Dkt.). Pursuant to the
court's order, (see Dkt. 15, Court's Order
of December 9, 2019), defendant submitted a copy of the state
court complaint. (See Dkt. 16-1, Complaint).
Plaintiff Guadalupe Bores's (“Bores” or
“plaintiff”) complaint asserts a single claim for
violation of California's Unruh Civil Rights Act
(“Unruh Act”), Cal. Civ. Code §§ 51,
et seq. (See id. at ¶¶ 37-51).
Having reviewed the pleadings, the court hereby remands this
action to state court for lack of subject matter
jurisdiction. See 28 U.S.C. §§ 1447(c).
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute[.]”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377, 114 S.Ct. 1673, 1675 (1994). The courts are
presumed to lack jurisdiction unless the contrary appears
affirmatively from the record. See DaimlerChrysler Corp.
v. Cuno, 547 U.S. 332, 342 n. 3, 126 S.Ct. 1854, 1861
(2006). Federal courts have a duty to examine jurisdiction
sua sponte before proceeding to the merits of a
case, see Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 583, 119 S.Ct. 1563, 1569 (1999), “even in the
absence of a challenge from any party.” Arbaugh v.
Y&H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 1244
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 Protection, Inc. v. Henson,
537 U.S. 28, 32, 123 S.Ct. 366, 369 (2002) (internal
quotation marks omitted). Where Congress has acted to create
a right of removal, those statutes, unless otherwise stated,
are strictly construed against removal
jurisdiction. See id. Unless otherwise
expressly provided by 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[.]” 28 U.S.C. § 1441(a); see Dennis v.
Hart, 724 F.3d 1249, 1252 (9th Cir. 2013) (same). A
removing defendant bears the burden of establishing that
removal is proper. See Abrego Abrego v. The Dow Chem.
Co., 443 F.3d 676, 684 (9th Cir. 2006) (per
curiam) (noting the “longstanding, near-canonical
rule that the burden on removal rests with the removing
defendant”); Gaus v. Miles, Inc., 980 F.2d
564, 566 (9th Cir. 1992) (“The strong presumption
against removal jurisdiction means that the defendant always
has the burden of establishing that removal is
proper.”) (internal quotation marks omitted). Moreover,
if there is any doubt regarding the existence of subject
matter jurisdiction, the court must resolve those doubts in
favor of remanding the action to state court. See
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 instance.”).
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 Protection, 537 U.S. at 33, 123 S.Ct. at 370.
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,
Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th
Cir. 2003). Indeed, “[i]f 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); see Emrich v. Touche Ross &
Co., 846 F.2d 1190, 1194 n. 2 (9th Cir. 1988) (“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.”); Washington v. United Parcel Serv.,
Inc., 2009 WL 1519894, *1 (C.D. Cal. 2009) (a district
court may remand an action where the court finds that it
lacks subject matter jurisdiction either by motion or sua
purposes of removal based on federal question jurisdiction,
the well-pleaded complaint rule “provides that federal
jurisdiction exists only when a federal question is presented
on the face of the plaintiff's properly pleaded
complaint.” Smallwood v. Allied Van Lines,
Inc., 660 F.3d 1115, 1120 (9th Cir. 2011) (quoting
Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107
S.Ct. 2425, 2429 (1987)). “As the master of the
complaint, a plaintiff may defeat removal by choosing not to
plead independent federal claims.” ARCO Envt'l
Remediation, L.L.C. v. Dep't of Health & Envt'l
Quality of Montana, 213 F.3d 1108, 1114 (9th Cir. 2000).
court's review of the NOR and the attached Complaint
makes clear that this court does not have subject matter
jurisdiction over the instant matter. In other words,
plaintiff could not have originally brought this action in
federal court, in that plaintiff does not competently allege
facts supplying federal question jurisdiction, and therefore
removal was improper. See 28 U.S.C. §
1441(a); Caterpillar Inc., 482 U.S. at
392, 107 S.Ct. at 2429 (“Only state-court actions that
originally could have been filed in federal court may be
removed to federal court by the defendant.”) (footnote
Complaint asserts only one state-law claim under the Unruh
Act. (Dkt. 16-1, Complaint at ¶¶ 37-51). Defendant,
however, asserts in conclusory fashion that federal question
jurisdiction exists because “it appears from the
Complaint that this is a civil rights action premised on and
alleging violations of the Americans with Disabilities Act
[(“ADA”)], 42 U.S.C. §§ 12181, et
seq.” (See Dkt. 1, NOR at ¶ 4).
However, the fact that plaintiff relies in part on ADA
violations as the basis for her state claim, (see
Dkt. 16-1, Complaint at ¶¶ 37-51); Bell v.
Retail Servs. & Sys., Inc., 2018 WL 3455811, *2
(N.D. Cal.) (“[T]he Unruh Act . . . incorporate[s] the
ADA, such that the ADA may serve as a ‘hook' for an
alleged violation of state law.”), is insufficient to
confer federal question jurisdiction. See Pizarro v.
CubeSmart, 2014 WL 3434335, *2 (C.D. Cal. 2014)
(remanding action asserting Unruh Act. . . claim for lack
of federal question jurisdiction); Bell, 2018 WL
3455811, at *2 (same); Rios v. New York and Company,
Inc., 2017 WL 3575220, *2 (C.D. Cal. 2017) (finding
plaintiff's reliance on ADA violations as a hook for
violation of the Unruh Act did not confer federal question
jurisdiction); Thurston v. Omni Hotels Mgmt. Corp.,
2017 WL 3034333, *1 (C.D. Cal. 2017) (granting
plaintiff's motion to remand Unruh Act claim premised on
ADA violations); see also Franchise Tax Bd. of the State
of Cal. v. Constr. Laborers Vacation Trust for S. Cal.,
463 U.S. 1, 27-28, 103 S.Ct. 2841, 2856 (1983),
superseded by statute on other grounds, as
recognized in DB Healthcare, LLC v. Blue Cross Blue Shield of
Arizona, Inc., 852 F.3d 868, 874 (9th Cir. 2017)
(“Congress has given the lower federal courts
jurisdiction to hear, originally or by removal from state
court, only those cases in which a well-pleaded complaint
establishes either that federal law creates the cause of
action or that the plaintiff's right to relief
necessarily depends on resolution of a substantial question
of federal law.”).
short, given that any doubt regarding the existence of
subject matter jurisdiction must be resolved in favor of
remanding the action to state court, see Gaus, 980
F.2d at 566, the court is not persuaded, under the
circumstances here, that defendant has met its burden.
Therefore, there is no basis for federal question
jurisdiction. See 28 U.S.C. § 1331.
order is not intended . Nor is it intended to be included in
or submitted to any online ...