1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 3139 MOUNT WHITNEY RD. TRUST Case No. 22-cv-189-MMA (AHG) DATED 06/14/2021, 12
Plaintiff, 13 ORDER REMANDING ACTION TO v. STATE COURT 14
15 DEBRA TONER, et al., Defendants. 16 17 18 On February 9, 2022, Defendant Debra Toner (“Defendant”) filed a Notice of 19 Removal from the State of California, Superior Court for the County of San Diego. See 20 Doc. No. 1 (“Notice of Removal”). According to the state court complaint, 3139 Mount 21 Whitney Rd. Trust Dated 06/14/2021, U.S. Financial, L.P., as Trustee (“Plaintiff”) 22 alleges a claim for unlawful detainer against Defendants Debra Toner, Kevin P. Carey, 23 Richard L. Stanley, and other unascertained defendants (collectively, “Defendants”). 24 See id. Having reviewed Defendant’s Notice of Removal, the Court finds it does not 25 have subject matter jurisdiction over this action, the removal is procedurally defective, 26 and sua sponte remand is appropriate. Therefore, for the reasons stated below, the Court 27 REMANDS this action to San Diego County Superior Court. 28 1 DISCUSSION 2 Defendant again attempts to have this Court exercise jurisdiction over the present 3 unlawful detainer action. Defendant previously removed the same state court action to 4 this Court in Case No. 21-cv-1845-MMA (AGS) (“First Case”) and the Court remanded 5 the action for lack of subject matter jurisdiction. First Case at Doc. No. 9. The complaint 6 attached to the Notice of Removal in this action is the same complaint bearing the same 7 state court case number as the complaint attached to the notice of removal in the First 8 Case. Compare Notice of Removal at 1, with First Case at Doc. No. 1. A review of the 9 Notice of Removal reveals that Plaintiff does not allege any additional grounds for this 10 Court’s subject matter jurisdiction that would render the removal proper. See St. Paul & 11 C.R. Co. v. McLean, 108 U.S. 212, 217 (1883); S.W.S. Erectors, Inc. v. Infax, Inc., 72 12 F.3d 489, 492–93 (5th Cir. 1996) (“As a general rule, once a case is remanded to state 13 court, a defendant is precluded only from seeking a second removal on the same ground. 14 The prohibition against removal ‘on the same ground’ does not concern the theory on 15 which federal jurisdiction exists (i.e., federal question or diversity jurisdiction), but rather 16 the pleading or event that made the case removeable.” (footnote omitted)); Fed. Home 17 Loan Mortg. Corp. v. Pulido, No. C 12-04525, 2012 WL 5199441, *2 (N.D. Cal. Oct. 20, 18 2012) (“Multiple removals could encounter problems—could even lead to sanctions—if 19 nothing of significance changes between the first and second tries.” (internal citation 20 omitted) (citing Benson v. SI Handling Sys., Inc., 188 F.3d 780, 783 (7th Cir. 1999))). 21 In any event, the Court finds that Plaintiff still fails to establish a basis for this 22 Court’s subject matter jurisdiction. Federal court is one of limited jurisdiction. 23 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). It possesses only 24 that power authorized by the Constitution or a statute. See Bender v. Williamsport Area 25 Sch. Dist., 475 U.S. 534, 541 (1986). It is constitutionally required to raise issues related 26 to federal subject matter jurisdiction, and may do so sua sponte. Steel Co. v. Citizens for 27 a Better Env’t, 523 U.S. 83, 93–94 (1998); see Indus. Tectonics, Inc. v. Aero Alloy, 912 28 F.2d 1090, 1092 (9th Cir. 1990); Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th 1 Cir. 2004) (observing that a court is required to consider sua sponte whether it has subject 2 matter jurisdiction). A state court action can only be removed if it could have originally 3 been brought in federal court. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, (1987); 4 Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). Generally, subject matter 5 jurisdiction is based on presence of a federal question, see 28 U.S.C. § 1331, or on 6 complete diversity between the parties, see 28 U.S.C. § 1332. For an action to be 7 removed on the basis of federal question jurisdiction, the complaint must establish either 8 that federal law creates the cause of action or that the plaintiff’s right to relief necessarily 9 depends on the resolution of substantial questions of federal law. Franchise Tax Bd. of 10 Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 10–11 (1983). 11 Additionally, a federal court has jurisdiction over an action involving citizens of different 12 states when the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332. 13 The party seeking federal jurisdiction bears the burden to establish jurisdiction. 14 Kokkonen, 511 U.S. at 377 (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 15 178, 182–83 (1936)); Nishimoto v. Federman-Bachrach & Assoc., 903 F.2d 709, 712 n.3 16 (9th Cir. 1990) (“The burden of establishing federal jurisdiction is on the party seeking 17 removal, and the removal statute is strictly construed against removal jurisdiction.”). 18 “Federal jurisdiction must be rejected if there is any doubt as to the right of removal in 19 the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Whether 20 federal jurisdiction exists is governed by the well-pleaded complaint rule. Caterpillar, 21 482 U.S. at 392. The well-pleaded complaint rule is a “powerful doctrine [that] severely 22 limits the number of cases in which state law ‘creates the cause of action’ that may be 23 initiated in or removed to federal district court . . . .” Franchise Tax Bd., 463 U.S. at 9– 24 10. Under this rule, the federal question must be “presented on the face of the plaintiff’s 25 properly pleaded complaint.” Id.; accord Wayne v. DHL Worldwide Express, 294 F.3d 26 1179, 1183 (9th Cir. 2002). A defendant’s claims or defenses that a plaintiff has violated 27 a federal statute cannot serve as a basis for federal question jurisdiction. Takeda v. Nw. 28 Nat. Life Ins. Co., 765 F.2d 815, 822 (9th Cir. 1985). 1 Here, Defendant generally asserts in her removal papers that jurisdiction in this 2 Court is proper, but she sets forth no cognizable basis for jurisdiction in her Notice of 3 Removal.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 3139 MOUNT WHITNEY RD. TRUST Case No. 22-cv-189-MMA (AHG) DATED 06/14/2021, 12
Plaintiff, 13 ORDER REMANDING ACTION TO v. STATE COURT 14
15 DEBRA TONER, et al., Defendants. 16 17 18 On February 9, 2022, Defendant Debra Toner (“Defendant”) filed a Notice of 19 Removal from the State of California, Superior Court for the County of San Diego. See 20 Doc. No. 1 (“Notice of Removal”). According to the state court complaint, 3139 Mount 21 Whitney Rd. Trust Dated 06/14/2021, U.S. Financial, L.P., as Trustee (“Plaintiff”) 22 alleges a claim for unlawful detainer against Defendants Debra Toner, Kevin P. Carey, 23 Richard L. Stanley, and other unascertained defendants (collectively, “Defendants”). 24 See id. Having reviewed Defendant’s Notice of Removal, the Court finds it does not 25 have subject matter jurisdiction over this action, the removal is procedurally defective, 26 and sua sponte remand is appropriate. Therefore, for the reasons stated below, the Court 27 REMANDS this action to San Diego County Superior Court. 28 1 DISCUSSION 2 Defendant again attempts to have this Court exercise jurisdiction over the present 3 unlawful detainer action. Defendant previously removed the same state court action to 4 this Court in Case No. 21-cv-1845-MMA (AGS) (“First Case”) and the Court remanded 5 the action for lack of subject matter jurisdiction. First Case at Doc. No. 9. The complaint 6 attached to the Notice of Removal in this action is the same complaint bearing the same 7 state court case number as the complaint attached to the notice of removal in the First 8 Case. Compare Notice of Removal at 1, with First Case at Doc. No. 1. A review of the 9 Notice of Removal reveals that Plaintiff does not allege any additional grounds for this 10 Court’s subject matter jurisdiction that would render the removal proper. See St. Paul & 11 C.R. Co. v. McLean, 108 U.S. 212, 217 (1883); S.W.S. Erectors, Inc. v. Infax, Inc., 72 12 F.3d 489, 492–93 (5th Cir. 1996) (“As a general rule, once a case is remanded to state 13 court, a defendant is precluded only from seeking a second removal on the same ground. 14 The prohibition against removal ‘on the same ground’ does not concern the theory on 15 which federal jurisdiction exists (i.e., federal question or diversity jurisdiction), but rather 16 the pleading or event that made the case removeable.” (footnote omitted)); Fed. Home 17 Loan Mortg. Corp. v. Pulido, No. C 12-04525, 2012 WL 5199441, *2 (N.D. Cal. Oct. 20, 18 2012) (“Multiple removals could encounter problems—could even lead to sanctions—if 19 nothing of significance changes between the first and second tries.” (internal citation 20 omitted) (citing Benson v. SI Handling Sys., Inc., 188 F.3d 780, 783 (7th Cir. 1999))). 21 In any event, the Court finds that Plaintiff still fails to establish a basis for this 22 Court’s subject matter jurisdiction. Federal court is one of limited jurisdiction. 23 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). It possesses only 24 that power authorized by the Constitution or a statute. See Bender v. Williamsport Area 25 Sch. Dist., 475 U.S. 534, 541 (1986). It is constitutionally required to raise issues related 26 to federal subject matter jurisdiction, and may do so sua sponte. Steel Co. v. Citizens for 27 a Better Env’t, 523 U.S. 83, 93–94 (1998); see Indus. Tectonics, Inc. v. Aero Alloy, 912 28 F.2d 1090, 1092 (9th Cir. 1990); Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th 1 Cir. 2004) (observing that a court is required to consider sua sponte whether it has subject 2 matter jurisdiction). A state court action can only be removed if it could have originally 3 been brought in federal court. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, (1987); 4 Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). Generally, subject matter 5 jurisdiction is based on presence of a federal question, see 28 U.S.C. § 1331, or on 6 complete diversity between the parties, see 28 U.S.C. § 1332. For an action to be 7 removed on the basis of federal question jurisdiction, the complaint must establish either 8 that federal law creates the cause of action or that the plaintiff’s right to relief necessarily 9 depends on the resolution of substantial questions of federal law. Franchise Tax Bd. of 10 Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 10–11 (1983). 11 Additionally, a federal court has jurisdiction over an action involving citizens of different 12 states when the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332. 13 The party seeking federal jurisdiction bears the burden to establish jurisdiction. 14 Kokkonen, 511 U.S. at 377 (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 15 178, 182–83 (1936)); Nishimoto v. Federman-Bachrach & Assoc., 903 F.2d 709, 712 n.3 16 (9th Cir. 1990) (“The burden of establishing federal jurisdiction is on the party seeking 17 removal, and the removal statute is strictly construed against removal jurisdiction.”). 18 “Federal jurisdiction must be rejected if there is any doubt as to the right of removal in 19 the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Whether 20 federal jurisdiction exists is governed by the well-pleaded complaint rule. Caterpillar, 21 482 U.S. at 392. The well-pleaded complaint rule is a “powerful doctrine [that] severely 22 limits the number of cases in which state law ‘creates the cause of action’ that may be 23 initiated in or removed to federal district court . . . .” Franchise Tax Bd., 463 U.S. at 9– 24 10. Under this rule, the federal question must be “presented on the face of the plaintiff’s 25 properly pleaded complaint.” Id.; accord Wayne v. DHL Worldwide Express, 294 F.3d 26 1179, 1183 (9th Cir. 2002). A defendant’s claims or defenses that a plaintiff has violated 27 a federal statute cannot serve as a basis for federal question jurisdiction. Takeda v. Nw. 28 Nat. Life Ins. Co., 765 F.2d 815, 822 (9th Cir. 1985). 1 Here, Defendant generally asserts in her removal papers that jurisdiction in this 2 Court is proper, but she sets forth no cognizable basis for jurisdiction in her Notice of 3 Removal. As to federal question, the presence or absence of federal question jurisdiction 4 “is governed by the ‘well-pleaded complaint rule,’ which provides that federal question 5 jurisdiction exists only when a federal question is presented on the face of [the] plaintiff’s 6 properly pleaded complaint.” Caterpillar, 482 U.S. at 392. A review of the state court 7 complaint reveals that Plaintiff alleges a single unlawful detainer claim against the 8 Defendants under California state law. Even liberally construing the notice, any 9 purported federal rights or claims would be defenses and potential counterclaims against 10 Plaintiff. However, neither defenses nor counterclaims are considered in evaluating 11 whether a federal question appears on the face of a Plaintiff’s complaint. Vaden v. 12 Discover Bank, 556 U.S. 49, 60 (2009) (providing that federal question jurisdiction 13 cannot “rest upon an actual or anticipated counterclaim”); Valles v. Ivy Hill Corp., 410 14 F.3d 1071, 1075 (9th Cir. 2005) (“A federal law defense to a state-law claim does not 15 confer jurisdiction on a federal court, even if the defense is that of federal preemption and 16 is anticipated in the plaintiff’s complaint.”). As such, Defendant does not establish 17 federal question jurisdiction under 28 U.S.C. § 1331, and removal on this ground was 18 improper. 19 Defendant also fails to establish that this Court has diversity jurisdiction under 20 28 U.S.C. § 1332. Plaintiff is a trust, and the trustee is a citizen of California. See 21 Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). 22 Defendant admittedly is a citizen of California as she currently resides at the property at 23 issue in the case. Thus, both Plaintiff and Defendant are citizens of the same state. The 24 Court therefore lacks diversity jurisdiction, and removal on this ground was improper.1 25 26 1 Removal in this case is also improper under 28 U.S.C. § 1441(b) because Defendant is a citizen of 27 California and thus cannot remove the action. 28 U.S.C. § 1441(b) (providing that removal is not permitted in diversity cases “if any of the parties in interest properly joined and served as defendants is a 28 1 Defendant additionally asserts that “civil rights removal” is proper pursuant to 2 28 U.S.C. § 1443. Notice of Removal at 9. A petition for removal under section 1443(1) 3 has been narrowly interpreted and must satisfy a two-part test. See Georgia v. Rachel, 4 384 U.S. 780, 788–92, 794–804 (1966); City of Greenwood v. Peacock, 384 U.S. 808, 5 824–28 (1966). “First, the petitioners must assert, as a defense to the prosecution, rights 6 that are given to them by explicit statutory enactment protecting equal racial civil rights.” 7 California v. Sandoval, 434 F.2d 635, 636 (9th Cir. 1970) (citing Rachel, 384 U.S. at 8 788–92). “Second, petitioners must assert that the state courts will not enforce that right, 9 and that allegation must be supported by reference to a state statute or a constitutional 10 provision that purports to command the state courts to ignore the federal rights.” Id. 11 Civil rights removal is not proper in this case. Even assuming Defendant properly 12 identifies an explicit equal racial civil rights law that may be asserted as a defense in the 13 state court action, she fails to show how or why she would be unable to enforce those 14 rights in state court. To be sure, she does not point to any specific state statute or 15 constitutional provision that would “command” the state court to ignore her rights. Thus, 16 a federal forum is not necessary to protect Defendant’s rights, and removal is improper 17 under section 1443. 18 In sum, Defendant again fails to establish a basis for this Court’s subject matter 19 jurisdiction.2 The Court must remand the case. See 28 U.S.C. § 1447(c). 20 21 22
23 2 The Court also finds that Defendant’s removal is procedurally defective under 28 U.S.C. 24 § 1446(b)(2)(A) because Plaintiff named multiple persons in the complaint but only Defendant filed the 25 notice of removal and failed to affirmatively explain her co-defendants’ absence. 28 U.S.C. § 1446(b)(2)(A) (“When a civil action is removed solely under section 1441(a), all defendants who have 26 been properly joined and served must join in or consent to the removal of the action.”); see also Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d 1261, 1266 (9th Cir. 1999), superseded by state on other 27 grounds (“Where fewer than all the defendants have jointed in a removal action, the removing party has the burden under section 1446(a) to explain affirmatively the absence of any co-defendants in the notice 28 l CONCLUSION 2 After careful review of the Notice of Removal and the accompanying documents, 3 Court finds and concludes that it lacks subject matter jurisdiction over this action and 4 ||the removal is procedurally defective. Therefore, the Court sua sponte REMANDS this 5 || action to the Superior Court for the County of San Diego. The Court DIRECTS the 6 || Clerk of Court to return the case to state court forthwith and close this action. 7 IT IS SO ORDERED. 8 ||Dated: February 15, 2022 9 . 0 Lbityl le 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28