1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 GUARDIAN PIAZZA D’ORO, LLC, Case No. 23-cv-2320-MMA-MSB
13 Plaintiff, ORDER GRANTING DEFENDANT’S 14 v. MOTION TO PROCEED IFP;
15 OUDREE ELLIS-SANDERS, et al., [Doc. No. 2] 16 Defendants. GRANTING PLAINTIFF’S MOTION 17 TO REMAND; AND 18 [Doc. No. 6] 19 20 DENYING AS MOOT DEFENDANT’S MOTION TO 21 APPOINT COUNSEL AND EX 22 PARTE MOTIONS
23 [Doc. Nos. 11, 15, 16] 24 25 26 27 28 1 On December 20, 2023, Defendant Oudree Ellis-Sanders (“Defendant”), 2 proceeding pro se, filed a Notice of Removal in this unlawful detainer action from the 3 State of California, Superior Court for the County of San Diego, and simultaneously filed 4 a motion to proceed in forma pauperis (“IFP”). Doc. Nos. 1, 2. Six days later, Plaintiff 5 Guardian Piazza D’Oro, LLC (“Plaintiff”) filed a motion to remand. Doc. No. 6. 6 Thereafter, Defendant filed a motion to appoint counsel, Doc. No. 11, but did not file a 7 response in opposition to Plaintiff’s motion, or obtain an extension of time to do so, by 8 the deadline. Instead, Defendant filed two ex parte motions. Doc. Nos. 15, 16. 9 The Court finds these matters suitable for determination on the papers and without 10 oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 11 7.1.d.1. For the reasons set forth below, the Court GRANTS Defendant’s IFP motion, 12 GRANTS Plaintiff’s motion to remand for lack of subject matter jurisdiction, and 13 DENIES Defendant’s motion to appoint counsel and ex parte motions as moot. 14 MOTION TO PROCEED IFP 15 All parties instituting a civil action, suit, or proceeding in a district court of the 16 United States, other than a petition for writ of habeas corpus, must pay a filing fee. 28 17 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay the filing fee 18 only if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a)(1). See 19 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A federal court may authorize 20 the commencement of an action without the prepayment of fees if the party submits an 21 affidavit, including a statement of assets, showing that she is unable to pay the required 22 filing fee. 28 U.S.C. § 1915(a). 23 As § 1915(a)(1) does not itself define what constitutes insufficient assets to 24 warrant IFP status, the determination of indigency falls within the district court’s 25 discretion. See Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) 26
27 1 On this record, co-Defendant Stormi Sanders has neither consented to nor joined in the removal of this 28 1 (“Section 1915 typically requires the reviewing court to exercise its sound discretion in 2 determining whether the affiant has satisfied the statute’s requirement of indigency.”), 3 rev’d on other grounds by 506 U.S. 194 (1993). “An affidavit in support of an IFP 4 application is sufficient where it alleges that the affiant cannot pay the court costs and 5 still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 6 2015) (citing Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948)). 7 “One need not be absolutely destitute to obtain benefits of the [IFP] statute.” Jefferson v. 8 United States, 277 F.2d 723, 725 (9th Cir. 1960). “Nonetheless, a plaintiff seeking IFP 9 status must allege poverty ‘with some particularity, definiteness and certainty.’” 10 Escobedo, 787 F.3d at 1234 (quoting United States v. McQuade, 647 F.2d 938, 940 (9th 11 Cir. 1981)). 12 Here, Defendant submits under penalty of perjury that she receives $1,309.00 in 13 monthly income from child support and other government assistance benefits. Doc. 14 No. 2 ¶ 1. She has not been employed during the past two years. Id. ¶ 2. She has $0 in 15 cash and $0 in her checking account. Id. ¶ 4. Her only asset is a vehicle worth $800.00. 16 Id. ¶ 5. She has a nine-year-old daughter who is dependent on her. Id. ¶ 7. Her 17 estimated monthly expenses total $1,308.00. Id. ¶ 8. And she does not expect any major 18 changes to her income, expenses, assets, or liabilities in the coming twelve months. Id. 19 ¶ 9. 20 Based on the foregoing, the Court concludes that paying court costs would result in 21 Defendant being unable to afford the “necessities of life,” Escobedo, 787 F.3d at 1234, 22 and accordingly GRANTS Defendant’s IFP motion. 23 LEGAL STANDARD 24 Federal courts are of limited jurisdiction. Lowdermilk v. U.S. Bank Nat’l Ass’n, 25 479 F.3d 994, 997 (9th Cir. 2007). Federal courts possess only that power authorized by 26 the Constitution or a statute. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 27 541 (1986). The Court is constitutionally required to raise issues related to federal 28 subject matter jurisdiction, and may do so sua sponte. Steel Co. v. Citizens for a Better 1 Env’t, 523 U.S. 83, 93–94 (1998); see Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 2 1090, 1092 (9th Cir. 1990). Removal jurisdiction is governed by 28 U.S.C. § 1441, et 3 seq. Pursuant to 28 U.S.C. § 1331, a state court action can only be removed if it could 4 have originally been brought in federal court. Caterpillar, Inc. v. Williams, 482 U.S. 386, 5 392 (1987); Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). Thus, for an action 6 to be removed on the basis of federal question jurisdiction, the complaint must establish 7 either that federal law creates the cause of action or that the plaintiff’s right to relief 8 necessarily depends on the resolution of substantial questions of federal law. Franchise 9 Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 10–11 10 (1983). 11 “The burden of establishing federal jurisdiction is on the party seeking removal, 12 and the removal statute is strictly construed against removal jurisdiction.” Nishimoto v. 13 Federman-Bachrach & Assocs., 903 F.2d 709, 712 n.3 (9th Cir. 1990).
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 GUARDIAN PIAZZA D’ORO, LLC, Case No. 23-cv-2320-MMA-MSB
13 Plaintiff, ORDER GRANTING DEFENDANT’S 14 v. MOTION TO PROCEED IFP;
15 OUDREE ELLIS-SANDERS, et al., [Doc. No. 2] 16 Defendants. GRANTING PLAINTIFF’S MOTION 17 TO REMAND; AND 18 [Doc. No. 6] 19 20 DENYING AS MOOT DEFENDANT’S MOTION TO 21 APPOINT COUNSEL AND EX 22 PARTE MOTIONS
23 [Doc. Nos. 11, 15, 16] 24 25 26 27 28 1 On December 20, 2023, Defendant Oudree Ellis-Sanders (“Defendant”), 2 proceeding pro se, filed a Notice of Removal in this unlawful detainer action from the 3 State of California, Superior Court for the County of San Diego, and simultaneously filed 4 a motion to proceed in forma pauperis (“IFP”). Doc. Nos. 1, 2. Six days later, Plaintiff 5 Guardian Piazza D’Oro, LLC (“Plaintiff”) filed a motion to remand. Doc. No. 6. 6 Thereafter, Defendant filed a motion to appoint counsel, Doc. No. 11, but did not file a 7 response in opposition to Plaintiff’s motion, or obtain an extension of time to do so, by 8 the deadline. Instead, Defendant filed two ex parte motions. Doc. Nos. 15, 16. 9 The Court finds these matters suitable for determination on the papers and without 10 oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 11 7.1.d.1. For the reasons set forth below, the Court GRANTS Defendant’s IFP motion, 12 GRANTS Plaintiff’s motion to remand for lack of subject matter jurisdiction, and 13 DENIES Defendant’s motion to appoint counsel and ex parte motions as moot. 14 MOTION TO PROCEED IFP 15 All parties instituting a civil action, suit, or proceeding in a district court of the 16 United States, other than a petition for writ of habeas corpus, must pay a filing fee. 28 17 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay the filing fee 18 only if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a)(1). See 19 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A federal court may authorize 20 the commencement of an action without the prepayment of fees if the party submits an 21 affidavit, including a statement of assets, showing that she is unable to pay the required 22 filing fee. 28 U.S.C. § 1915(a). 23 As § 1915(a)(1) does not itself define what constitutes insufficient assets to 24 warrant IFP status, the determination of indigency falls within the district court’s 25 discretion. See Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) 26
27 1 On this record, co-Defendant Stormi Sanders has neither consented to nor joined in the removal of this 28 1 (“Section 1915 typically requires the reviewing court to exercise its sound discretion in 2 determining whether the affiant has satisfied the statute’s requirement of indigency.”), 3 rev’d on other grounds by 506 U.S. 194 (1993). “An affidavit in support of an IFP 4 application is sufficient where it alleges that the affiant cannot pay the court costs and 5 still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 6 2015) (citing Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948)). 7 “One need not be absolutely destitute to obtain benefits of the [IFP] statute.” Jefferson v. 8 United States, 277 F.2d 723, 725 (9th Cir. 1960). “Nonetheless, a plaintiff seeking IFP 9 status must allege poverty ‘with some particularity, definiteness and certainty.’” 10 Escobedo, 787 F.3d at 1234 (quoting United States v. McQuade, 647 F.2d 938, 940 (9th 11 Cir. 1981)). 12 Here, Defendant submits under penalty of perjury that she receives $1,309.00 in 13 monthly income from child support and other government assistance benefits. Doc. 14 No. 2 ¶ 1. She has not been employed during the past two years. Id. ¶ 2. She has $0 in 15 cash and $0 in her checking account. Id. ¶ 4. Her only asset is a vehicle worth $800.00. 16 Id. ¶ 5. She has a nine-year-old daughter who is dependent on her. Id. ¶ 7. Her 17 estimated monthly expenses total $1,308.00. Id. ¶ 8. And she does not expect any major 18 changes to her income, expenses, assets, or liabilities in the coming twelve months. Id. 19 ¶ 9. 20 Based on the foregoing, the Court concludes that paying court costs would result in 21 Defendant being unable to afford the “necessities of life,” Escobedo, 787 F.3d at 1234, 22 and accordingly GRANTS Defendant’s IFP motion. 23 LEGAL STANDARD 24 Federal courts are of limited jurisdiction. Lowdermilk v. U.S. Bank Nat’l Ass’n, 25 479 F.3d 994, 997 (9th Cir. 2007). Federal courts possess only that power authorized by 26 the Constitution or a statute. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 27 541 (1986). The Court is constitutionally required to raise issues related to federal 28 subject matter jurisdiction, and may do so sua sponte. Steel Co. v. Citizens for a Better 1 Env’t, 523 U.S. 83, 93–94 (1998); see Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 2 1090, 1092 (9th Cir. 1990). Removal jurisdiction is governed by 28 U.S.C. § 1441, et 3 seq. Pursuant to 28 U.S.C. § 1331, a state court action can only be removed if it could 4 have originally been brought in federal court. Caterpillar, Inc. v. Williams, 482 U.S. 386, 5 392 (1987); Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). Thus, for an action 6 to be removed on the basis of federal question jurisdiction, the complaint must establish 7 either that federal law creates the cause of action or that the plaintiff’s right to relief 8 necessarily depends on the resolution of substantial questions of federal law. Franchise 9 Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 10–11 10 (1983). 11 “The burden of establishing federal jurisdiction is on the party seeking removal, 12 and the removal statute is strictly construed against removal jurisdiction.” Nishimoto v. 13 Federman-Bachrach & Assocs., 903 F.2d 709, 712 n.3 (9th Cir. 1990). “Federal 14 jurisdiction must be rejected if there is any doubt as to the right of removal in the first 15 instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Whether federal 16 jurisdiction exists is governed by the well-pleaded complaint rule. Caterpillar, 482 U.S. 17 at 392. The well-pleaded complaint rule is a “powerful doctrine [that] severely limits the 18 number of cases in which state law ‘creates the cause of action’ that may be initiated in or 19 removed to federal district court . . . .” Franchise Tax Bd., 463 U.S. at 9–10. Under this 20 rule, the federal question must be “presented on the face of the plaintiff’s properly 21 pleaded complaint.” Id. 22 DISCUSSION 23 Defendant indicates in her removal papers that jurisdiction in this Court is based on 24 federal question jurisdiction. See Doc. No. 1 at 4. Liberally construing the Notice of 25 Removal, Plaintiff’s state court complaint does not present a federal question of law that 26 would provide this Court with jurisdiction over this matter under 28 U.S.C. § 1331. First, 27 there is no federal question apparent in the state action complaint appended to the Notice 28 of Removal, which appears to allege only a simple unlawful detainer cause of action 1 under California law. See Esa Mgmt., LLC v. Kaler, No. 3:23-cv-01324-RBM-MMP, 2 2023 U.S. Dist. LEXIS 134648, at *4 (S.D. Cal. Aug. 2, 2023) (collecting cases); see also 3 Wescom Credit Union v. Dudley, No. CV 10-8203 GAF (SSx), 2010 WL 4916578, *2 4 (C.D. Cal. Nov. 22, 2010) (“An unlawful detainer action does not arise under federal 5 law.”) (citation omitted); IndyMac Federal Bank, F.S.B. v. Ocampo, No. EDCV 09-2337 6 PA(DTBx), 2010 WL 234828, at *2 (C.D. Cal. Jan. 13, 2010) (remanding an action to 7 state court for lack of subject matter jurisdiction where plaintiff’s complaint contained 8 only an unlawful detainer claim). 9 Second, there is no merit to Defendant’s contention that federal question 10 jurisdiction exists because her anticipated defenses and/or counterclaims may raise issues 11 of federal law. Neither defenses nor counterclaims are considered in evaluating whether 12 a federal question appears on the face of a plaintiff’s complaint. Vaden v. Discover Bank, 13 556 U.S. 49, 60 (2009) (federal question jurisdiction cannot “rest upon an actual or 14 anticipated counterclaim”); Valles v. Ivy Hill Corp., 410 F.3d 1071, 1075 (9th Cir. 2005) 15 (“A federal law defense to a state-law claim does not confer jurisdiction on a federal 16 court, even if the defense is that of federal preemption and is anticipated in the plaintiff’s 17 complaint.”); Caterpillar, 482 U.S. at 393 (“[I]t is now settled law that a case may not be 18 removed to federal court on the basis of a federal defense.”) (emphasis in original). 19 Accordingly, to the extent Defendant’s anticipated defenses and counterclaims may be 20 based on alleged violations of federal law, those defenses and counterclaims cannot 21 provide a basis for federal question jurisdiction. 22 As noted above, Defendant did not file an opposition to Plaintiff’s motion to 23 remand, or obtain an extension of time to do so, by the January 16, 2024 deadline. 24 Instead, on the deadline to oppose she filed two ex parte motions seeking: (1) a 45-day 25 extension to oppose the motion to remand; and (2) to continue the hearing. The Court 26 already vacated the motion to remand hearing. See Doc. No. 13 at 2. Further, her 27 motions do not comply with either the Civil Local Rules or the undersigned’s Civil 28 Chambers Rules. See CivLR 83.3.g; see also Civ. Chambers R. VIII. In any event, 1 || because the Court has the authority to sua sponte remand, and because it is plain based 2 || upon both Defendant’s Notice of Removal and Plaintiffs state court complaint that 3 || subject matter jurisdiction is lacking, the Court DENIES these motions as moot. 4 CONCLUSION 5 Based on the foregoing, the Court GRANTS Defendant’s IFP motion. See Doc. 6 ||No. 2. The Court finds that Defendant has not adequately established a basis for this 7 ||Court’s subject matter jurisdiction, and therefore GRANTS Plaintiff's motion, see Doc. 8 || No. 6, and REMANDS this action back to state court. See 28 U.S.C. § 1447(c). Because 9 || it is plain on the face of the complaint that the Court lacks subject matter jurisdiction, the 10 || Court DENIES AS MOOT Defendant’s motion to appoint counsel and ex parte motions. 11 Doc. Nos. 11, 15, 16. The Clerk of Court is instructed to return the action to state 12 court forthwith and close this case. 13 IT IS SO ORDERED. 14 || Dated: January 18, 2024 15 Maite. M={ hiltr 16 HON. MICHAEL M. ANELLO 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28