Cobra 28 No 8 LP v. Fernando Aguilar

• Court: District Court, C.D. California
• Decided: May 3, 2023
• Docket: 5:23-cv-00542
• Status: Unknown

Opinion

CIVIL MINUTES – GENERAL Case No. 5:23-cv-00542-MEMF-SPx Date: May 3, 2023 Title Cobra 28 No 8 LP v. Fernando Aguilar et al

Present: The Honorable: Maame Ewusi-Mensah Frimpong

Kelly Davis N/A Deputy Clerk Court Reporter / Recorder Attorneys Present for Plaintiffs: Attorneys Present for Defendants: N/A N/A Proceedings: Minute Order Granting Ex Parte Application to Remand On April 12, 2023, Plaintiff Cobra 28 No 8 LP (“Cobra”) filed an Ex Parte Application to Remand Case. ECF No. 8. “The 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 Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002) (quoting Great N. Ry. Co. v. Alexander, 246 U.S. 276, 280 (1918)). Generally, where Congress has acted to create a right of removal, those statutes are strictly construed against removal jurisdiction. Id.; Nevada v. Bank of Am. Corp., 672 F.3d 661, 667 (9th Cir. 2012); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Unless otherwise expressly provided by Congress, a defendant may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a); Dennis v. Hart, 724 F.3d 1249, 1252 (9th Cir. 2013). The removing defendant bears the burden of establishing federal jurisdiction. Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 682 (9th Cir. 2006); Gaus, 980 F.2d at 566–67. “Under 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 Prot., 537 U.S. at 33. 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 v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003) (citation omitted). “If 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). It is “elementary CIVIL MINUTES – GENERAL

Case No. 5:23-cv-00542-MEMF-SPx Date: May 3, 2023 Title Cobra 28 No 8 LP v. Fernando Aguilar et al

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.” Emrich v. Touche Ross & Co., 846 F.2d 1190, 1194 n.2 (9th Cir. 1988).

From a review of the Notice of Removal and the state court records provided, it is evident that the Court lacks subject matter jurisdiction over the instant case, for the following reasons.

First, no basis for federal question jurisdiction has been identified. The Complaint does not include any claim “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Rather, the underlying action is an unlawful detainer proceeding, arising under and governed by the laws of the State of California.

Second, diversity jurisdiction is lacking and/or this case is not removable on that basis. The underlying unlawful detainer action is a limited civil action that does not exceed $25,000.

In light of the foregoing, the Court hereby GRANTS the Ex Parte Application and orders that this action be remanded to the Superior Court of California for lack of subject matter jurisdiction.

: Initials of Preparer KD