1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 BANK OF AMERICA, NATIONAL Case No.: 19-cv-2207-WQH-MDD ASSOCIATION, 9 ORDER Plaintiff, 10 v. 11 GLORIA BERNICE GERMAN 12 a.k.a. DEVIN BELL; and DOES 1 13 to 10, inclusive, 14 Defendants. 15 16 HAYES, Judge: 17 The matter before the Court is the Motion for Leave to Proceed In Forma Pauperis 18 filed by Defendant Devin Bell.1 (ECF No. 2). 19 I. BACKGROUND 20 On May 9, 2019, Plaintiff Bank of America, National Association (“Bank of 21 America”), initiated this action by filing a Verified Complaint for Unlawful Detainer and 22 Damages in the Superior Court for the State of California, County of San Diego, against 23 Defendants Gloria Bernice German and Does 1 through 10. (ECF No. 1-2). In the 24 Complaint, Bank of America alleges that it is entitled to possession of real property located 25 at 3965 Newton Avenue, San Diego, California, 92113 (the “Property”). Bank of America 26
27 1 Although the caption in this action states the named Defendant is “Gloria Bernice German a.k.a. Devin 28 1 alleges that it served Defendants with a written notice requiring Defendants to vacate the 2 property, and Defendants failed to vacate the property. Bank of America alleges a single 3 claim for unlawful detainer under California law. 4 On August 27, 2019, Devin Bell filed a Prejudgment Claim of Right to Possession 5 in state court and was added as a Defendant in this case. See ECF No. 1-2 at 23. 6 On November 20, 2019, Bell removed the action to this Court. (ECF No. 1). In the 7 Notice of Removal, Bell alleges that Defendant German is Bell’s deceased grandmother. 8 Bell alleges that German bequeathed the Property to Bell’s mother pursuant to a written 9 will. Bell alleges that removal is proper pursuant to 28 U.S.C. §§ 1441(a) through 1446. 10 Bell alleges that the Court has jurisdiction pursuant to “Diversity requirements” and “28 11 U.S.C., section 1443 (1): Denial of due process in U.D. actions.” (Id. at 2). 12 On November 20, 2019, Bell filed a Motion to Proceed In Forma Pauperis. (ECF 13 No. 2). 14 II. DISCUSSION 15 The court has an independent duty to assess whether federal subject matter 16 jurisdiction exists. See United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 17 967 (9th Cir. 2004) (stating that “the district court had a duty to establish subject matter 18 jurisdiction over the removed action sua sponte, whether the parties raised the issue or 19 not”); accord Rains v. Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir. 1996). Because 20 subject matter jurisdiction may not be waived by the parties, a district court must remand 21 a removed case if it lacks jurisdiction over the matter. Kelton Arms Condominium Owners 22 Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003); accord Sparta 23 Surgical Corp. v. Nat’l Ass’n of Sec. Dealers, Inc., 159 F.3d 1209, 1211 (9th Cir. 1998); 24 see also 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the 25 district court lacks subject matter jurisdiction, the case shall be remanded.”). 26 The federal removal statute provides, in relevant part: 27 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 28 1 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 2 the place where such action is pending. 3 28 U.S.C. § 1441(a). “The defendant bears the burden of establishing that removal is 4 proper.” Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th 5 Cir. 2009). “The removal statute is strictly construed against removal jurisdiction,” id., and 6 removal jurisdiction “‘must be rejected if there is any doubt as to the right of removal in 7 the first instance’” Geographic Expeditions, Inc. v. Estate of Lhotka, 599 F.3d 1102, 1106 8 (9th Cir. 2010) (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per 9 curiam)). 10 District courts have original jurisdiction where “the parties [are] in complete diversity 11 and the amount in controversy exceed[s] $75,000.” Matheson v. Progressive Specialty Ins. 12 Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (citing 28 U.S.C. § 1332). “Subject matter 13 jurisdiction based upon diversity of citizenship requires that no defendant have the same 14 citizenship as any plaintiff.” Tosco Corp. v. Cmtys. for a Better Env’t, 236 F.3d 495, 499 15 (9th Cir. 2001). For the purposes of determining diversity of citizenship, “like a 16 partnership, an LLC is a citizen of every state of which its owners/members are citizens.” 17 Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). A 18 corporation is a citizen of “every State and foreign state by which is has been incorporated 19 and of the State or foreign state where it has its principal place of business . . . .” 28 U.S.C. 20 § 1332(c)(1). “The natural person’s state of citizenship is [ ] determined by her state of 21 domicile.” Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). 22 District courts further have original jurisdiction over “all civil actions that arise 23 under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “A case 24 ‘arises under’ federal law either where federal law creates the cause of action or ‘where the 25 vindication of a right under state law necessarily turn[s] on some construction of federal 26 law.’” Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002) 27 (modification in original) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 28 1 463 U.S. 1, 8-9 (1983)).
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 BANK OF AMERICA, NATIONAL Case No.: 19-cv-2207-WQH-MDD ASSOCIATION, 9 ORDER Plaintiff, 10 v. 11 GLORIA BERNICE GERMAN 12 a.k.a. DEVIN BELL; and DOES 1 13 to 10, inclusive, 14 Defendants. 15 16 HAYES, Judge: 17 The matter before the Court is the Motion for Leave to Proceed In Forma Pauperis 18 filed by Defendant Devin Bell.1 (ECF No. 2). 19 I. BACKGROUND 20 On May 9, 2019, Plaintiff Bank of America, National Association (“Bank of 21 America”), initiated this action by filing a Verified Complaint for Unlawful Detainer and 22 Damages in the Superior Court for the State of California, County of San Diego, against 23 Defendants Gloria Bernice German and Does 1 through 10. (ECF No. 1-2). In the 24 Complaint, Bank of America alleges that it is entitled to possession of real property located 25 at 3965 Newton Avenue, San Diego, California, 92113 (the “Property”). Bank of America 26
27 1 Although the caption in this action states the named Defendant is “Gloria Bernice German a.k.a. Devin 28 1 alleges that it served Defendants with a written notice requiring Defendants to vacate the 2 property, and Defendants failed to vacate the property. Bank of America alleges a single 3 claim for unlawful detainer under California law. 4 On August 27, 2019, Devin Bell filed a Prejudgment Claim of Right to Possession 5 in state court and was added as a Defendant in this case. See ECF No. 1-2 at 23. 6 On November 20, 2019, Bell removed the action to this Court. (ECF No. 1). In the 7 Notice of Removal, Bell alleges that Defendant German is Bell’s deceased grandmother. 8 Bell alleges that German bequeathed the Property to Bell’s mother pursuant to a written 9 will. Bell alleges that removal is proper pursuant to 28 U.S.C. §§ 1441(a) through 1446. 10 Bell alleges that the Court has jurisdiction pursuant to “Diversity requirements” and “28 11 U.S.C., section 1443 (1): Denial of due process in U.D. actions.” (Id. at 2). 12 On November 20, 2019, Bell filed a Motion to Proceed In Forma Pauperis. (ECF 13 No. 2). 14 II. DISCUSSION 15 The court has an independent duty to assess whether federal subject matter 16 jurisdiction exists. See United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 17 967 (9th Cir. 2004) (stating that “the district court had a duty to establish subject matter 18 jurisdiction over the removed action sua sponte, whether the parties raised the issue or 19 not”); accord Rains v. Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir. 1996). Because 20 subject matter jurisdiction may not be waived by the parties, a district court must remand 21 a removed case if it lacks jurisdiction over the matter. Kelton Arms Condominium Owners 22 Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003); accord Sparta 23 Surgical Corp. v. Nat’l Ass’n of Sec. Dealers, Inc., 159 F.3d 1209, 1211 (9th Cir. 1998); 24 see also 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the 25 district court lacks subject matter jurisdiction, the case shall be remanded.”). 26 The federal removal statute provides, in relevant part: 27 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 28 1 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 2 the place where such action is pending. 3 28 U.S.C. § 1441(a). “The defendant bears the burden of establishing that removal is 4 proper.” Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th 5 Cir. 2009). “The removal statute is strictly construed against removal jurisdiction,” id., and 6 removal jurisdiction “‘must be rejected if there is any doubt as to the right of removal in 7 the first instance’” Geographic Expeditions, Inc. v. Estate of Lhotka, 599 F.3d 1102, 1106 8 (9th Cir. 2010) (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per 9 curiam)). 10 District courts have original jurisdiction where “the parties [are] in complete diversity 11 and the amount in controversy exceed[s] $75,000.” Matheson v. Progressive Specialty Ins. 12 Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (citing 28 U.S.C. § 1332). “Subject matter 13 jurisdiction based upon diversity of citizenship requires that no defendant have the same 14 citizenship as any plaintiff.” Tosco Corp. v. Cmtys. for a Better Env’t, 236 F.3d 495, 499 15 (9th Cir. 2001). For the purposes of determining diversity of citizenship, “like a 16 partnership, an LLC is a citizen of every state of which its owners/members are citizens.” 17 Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). A 18 corporation is a citizen of “every State and foreign state by which is has been incorporated 19 and of the State or foreign state where it has its principal place of business . . . .” 28 U.S.C. 20 § 1332(c)(1). “The natural person’s state of citizenship is [ ] determined by her state of 21 domicile.” Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). 22 District courts further have original jurisdiction over “all civil actions that arise 23 under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “A case 24 ‘arises under’ federal law either where federal law creates the cause of action or ‘where the 25 vindication of a right under state law necessarily turn[s] on some construction of federal 26 law.’” Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002) 27 (modification in original) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 28 1 463 U.S. 1, 8-9 (1983)). “[T]he presence or absence of federal-question jurisdiction is 2 governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction 3 exists only when a federal question is presented on the face of the plaintiff’s properly 4 pleaded complaint.” Placer Dome, Inc., 582 F.3d at 1091; Ultramar Am. Ltd. v. Dwelle, 5 900 F.2d 1412, 1414 (9th Cir. 1990) (“Ordinarily, the existence of federal question 6 jurisdiction is determined from the face of the complaint.”). “In determining the existence 7 of removal jurisdiction, based upon a federal question, the court must look to the complaint 8 as of the time the removal petition was filed. Jurisdiction is based on the complaint as 9 originally filed.” Abada v. Charles Schwab & Co., 300 F.3d 1112, 1117 (9th Cir. 2002) 10 (quotation omitted). 11 In this case, Bell indicates on the civil cover sheet filed with the Notice of Removal 12 that the basis of subject matter jurisdiction in this action is “Diversity.” (ECF No. 1-1 at 13 1). Bell indicates, however, that the “Defendant” is a “Citizen of This State” and that the 14 “Plaintiff” is “Incorporated or Principal Place of Business in This State.” (Id. (emphasis in 15 original)). There is nothing in the Complaint to indicate that the Parties are diverse. 16 In the Notice of Removal Bell asserts a second basis for subject matter jurisdiction: 17 “28 U.S.C., section 1443 (1): Denial of due process in U.D. actions.” (ECF No. 1 at 2). 28 18 U.S.C. § 1443 (1) provides: 19 Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United 20 States for the district and division embracing the place wherein it is pending: 21 (1) Against any person who is denied or cannot enforce in the courts of 22 such State a right under any law providing for the equal civil rights of 23 citizens of the United States, or of all persons within the jurisdiction thereof. 24
25 Section 1443 is a federal removal statute; it is not an independent basis for jurisdiction. 26 There is further no indication in the Complaint or Notice of Removal that Bell meets the 27 requirements for removal under § 1443 (1). See Johnson v. Mississippi, 421 U.S. 213, 219 28 (1975) (holding that removal under § 1443 (1) must satisfy a two-pronged test: “First, it 1 must appear that the right allegedly denied the removal petitioner arises under federal law 2 ‘providing for specific civil rights stated in terms of racial equality.’ . . . Second, it must 3 appear, in accordance with the provisions of § 1443 (1), that the removal petitioner is 4 ‘denied or cannot enforce’ the specified federal rights ‘in the courts of [the] State.’” 5 (quoting Georgia v. Rachel, 384 U.S. 780, 792, 803 (1966)). 6 There is no other basis for this Court to exercise subject matter jurisdiction in this 7 case. The Complaint on its face does not allege a cause of action arising under the 8 Constitution, laws, or treaties of the United States that would give this Court original 9 jurisdiction over this matter. Bank of America’s Complaint asserts a single claim for 10 unlawful detainer, a cause of action that is purely a matter of state law. See Muhammad v. 11 N. Richmond Senior Hous., Inc., No. 15-cv-00629-WHO, 2015 WL 1154209, at *2 (N.D. 12 Cal. Mar. 13, 2015) (“California federal courts have repeatedly held that unlawful detainer 13 cases brought under California’s unlawful detainer statute do not raise federal questions.”); 14 Fed. Nat’l. Mortg. Ass’n v. Enshiwat, No. CV 12-631 CAS (CWx), 2012 WL 683106, at 15 *1 (C.D. Cal. Mar. 2, 2012) (“Unlawful detainer actions are strictly within the province of 16 state court.”); Franks v. Franks, No. 3:17-CV-893-CAB-AGS, 2017 WL 1735169, at *1 17 (S.D. Cal. May 4, 2017) (same). Bell fails to establish that removal under any section 18 “1441(a) through 1446” was proper.2 (ECF No. 1 at 2). The Court finds that it lacks subject 19 matter jurisdiction over this action. Accordingly, the Court remands this action to state 20 court pursuant to 28 U.S.C. § 1447(c). 21 III. CONCLUSION 22 IT IS HEREBY ORDERED that this action is remanded to the Superior Court for 23 the State of California, County of San Diego, where it was originally filed under case 24
25 26 2 28 U.S.C. § 1442 authorizes removal for actions against officers of the United States. 28 U.S.C. § 1442a authorizes removal for actions against members of the armed forces in their official capacities. 28 U.S.C. 27 § 1444 authorizes removal in a foreclosure action against the United States. 28 U.S.C. § 1445 provides that certain actions may not be removed to federal court. 28 U.S.C. § 1446 states the procedural 28 1 ||number 37-2019-00024064-CL-UD-CTL. The Motion for Leave to Proceed In Forma 2 || Pauperis (ECF No. 2) is denied as moot. 3 || Dated: December 11, 2019 itt Z. A a 4 Hon. William Q. Hayes 5 United States District Court 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28