1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES VOOS, Case No. 23-cv-466-MMA (KSC)
12 Plaintiff, ORDER: (1) SUA SPONTE 13 v. REMANDING ACTION FOR LACK OF SUBJECT MATTER 14 KARA ASALONE, JURISDICTION; AND (2) DENYING 15 Defendant. AS MOOT DEFENDANT’S MOTION TO PROCEED IN FORMA 16 PAUPERIS 17 [Doc. No. 2] 18 19 On March 17, 2023, Defendant Kara Asalone (“Defendant”), proceeding pro se, 20 filed a Notice of Removal in this unlawful detainer action from the State of California, 21 Superior Court for the County of San Diego, and simultaneously filed a motion to 22 proceed in forma pauperis (“IFP”). Doc. Nos. 1, 2. For the reasons set forth below, the 23 Court sua sponte REMANDS this case to the San Diego County Superior Court for lack 24 of subject matter jurisdiction. 25 LEGAL STANDARD 26 Federal courts are of limited jurisdiction. Lowdermilk v. U.S. Bank Nat’l Ass’n, 27 479 F.3d 994, 997 (9th Cir. 2007). Federal courts possess only that power authorized by 28 the Constitution or a statute. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 1 541 (1986). The Court is constitutionally required to raise issues related to federal 2 subject matter jurisdiction, and may do so sua sponte. Steel Co. v. Citizens for a Better 3 Env’t, 523 U.S. 83, 93–94 (1998); see Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 4 1090, 1092 (9th Cir. 1990). Removal jurisdiction is governed by 28 U.S.C. § 1441, et 5 seq. A state court action can only be removed if it could have originally been brought in 6 federal court. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); Duncan v. 7 Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). Thus, for an action to be removed on the 8 basis of federal question jurisdiction, the complaint must establish either that federal law 9 creates the cause of action or that the plaintiff’s right to relief necessarily depends on the 10 resolution of substantial questions of federal law. Franchise Tax Bd. of Cal. v. Constr. 11 Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 10–11 (1983). Additionally, 12 federal courts have jurisdiction over an action involving citizens of different states when 13 the amount in controversy exceeds $75,000. 28 U.S.C. § 1332. 14 “The burden of establishing federal jurisdiction is on the party seeking removal, 15 and the removal statute is strictly construed against removal jurisdiction.” Nishimoto v. 16 Federman-Bachrach & Assocs., 903 F.2d 709, 712 n.3 (9th Cir. 1990). “Federal 17 jurisdiction must be rejected if there is any doubt as to the right of removal in the first 18 instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Whether federal 19 jurisdiction exists is governed by the well-pleaded complaint rule. Caterpillar, 482 U.S. 20 at 392. The well-pleaded complaint rule is a “powerful doctrine [that] severely limits the 21 number of cases in which state law ‘creates the cause of action’ that may be initiated in or 22 removed to federal district court . . . .” Franchise Tax Bd., 463 U.S. at 9–10. Under this 23 rule, the federal question must be “presented on the face of the plaintiff’s properly 24 pleaded complaint.” Id.; accord Wayne v. DHL Worldwide Express, 294 F.3d 1179, 1183 25 (9th Cir. 2002). 26 27 28 1 DISCUSSION 2 Here, Defendant indicates in her removal papers that jurisdiction in this Court is 3 based on federal question jurisdiction. See Doc. No. 1 at 1–5. Liberally construing the 4 Notice of Removal, Plaintiff’s state court complaint does not present a federal question of 5 law that would provide this Court with jurisdiction over this matter under 28 U.S.C. 6 § 1331. First, there is no federal question apparent in the state action described in the 7 Notice of Removal, which appears to allege only a simple unlawful detainer cause of 8 action. See Wescom Credit Union v. Dudley, No. CV 10-8203 GAF (SSx), 2010 WL 9 4916578, *2 (C.D. Cal. Nov. 22, 2010) (“An unlawful detainer action does not arise 10 under federal law.”) (citation omitted); IndyMac Federal Bank, F.S.B. v. Ocampo, No. 11 EDCV 09-2337 PA(DTBx), 2010 WL 234828, at *2 (C.D. Cal. Jan. 13, 2010) 12 (remanding an action to state court for lack of subject matter jurisdiction where plaintiff’s 13 complaint contained only an unlawful detainer claim). 14 Second, there is no merit to Defendant’s contention that federal question 15 jurisdiction exists because Defendant’s anticipated defenses and counterclaims may raise 16 issues of federal law. Neither defenses nor counterclaims are considered in evaluating 17 whether a federal question appears on the face of a Plaintiff’s complaint. Vaden v. 18 Discover Bank, 556 U.S. 49, 60 (2009) (federal question jurisdiction cannot “rest upon an 19 actual or anticipated counterclaim”); Valles v. Ivy Hill Corp., 410 F.3d 1071, 1075 (9th 20 Cir. 2005) (“A federal law defense to a state-law claim does not confer jurisdiction on a 21 22 23 1 It is unclear if Defendant attached the entirety of Plaintiff’s Complaint to the Notice of Removal. See Doc. No. 1. It is similarly unclear if Defendant has been properly served a copy of the Complaint in its 24 entirety as Defendant states that “[o]n 2/28/23, the Defendant was improperly served with a copy of the 25 complaint in this action.” Id. at 1. In any event, the failure to attach a complaint, as required by 28 U.S.C. § 1446(a) when a defendant has been served, is a non-jurisdictional procedural defect and cannot, 26 alone, provide the basis for a district court to remand the matter sua sponte. See Kelton Arms Condo. Owners Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192–93 (9th Cir. 2003) (“[W]e hold that the 27 district court cannot remand sua sponte for defects in removal procedure.”); see also Gerber v. FCA US LLC, No. 17-CV-0518-AJB-BGS, 2017 U.S. Dist. LEXIS 97641, at *14–15 (S.D. Cal. June 23, 2017) 28 | || federal court, even if the defense is that of federal preemption and is anticipated in the 2 || plaintiff's complaint.”); Caterpillar, 482 U.S. at 393 (“[I]t is now settled law that a case 3 ||may not be removed to federal court on the basis of a federal defense.”) (emphasis in 4 || original).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES VOOS, Case No. 23-cv-466-MMA (KSC)
12 Plaintiff, ORDER: (1) SUA SPONTE 13 v. REMANDING ACTION FOR LACK OF SUBJECT MATTER 14 KARA ASALONE, JURISDICTION; AND (2) DENYING 15 Defendant. AS MOOT DEFENDANT’S MOTION TO PROCEED IN FORMA 16 PAUPERIS 17 [Doc. No. 2] 18 19 On March 17, 2023, Defendant Kara Asalone (“Defendant”), proceeding pro se, 20 filed a Notice of Removal in this unlawful detainer action from the State of California, 21 Superior Court for the County of San Diego, and simultaneously filed a motion to 22 proceed in forma pauperis (“IFP”). Doc. Nos. 1, 2. For the reasons set forth below, the 23 Court sua sponte REMANDS this case to the San Diego County Superior Court for lack 24 of subject matter jurisdiction. 25 LEGAL STANDARD 26 Federal courts are of limited jurisdiction. Lowdermilk v. U.S. Bank Nat’l Ass’n, 27 479 F.3d 994, 997 (9th Cir. 2007). Federal courts possess only that power authorized by 28 the Constitution or a statute. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 1 541 (1986). The Court is constitutionally required to raise issues related to federal 2 subject matter jurisdiction, and may do so sua sponte. Steel Co. v. Citizens for a Better 3 Env’t, 523 U.S. 83, 93–94 (1998); see Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 4 1090, 1092 (9th Cir. 1990). Removal jurisdiction is governed by 28 U.S.C. § 1441, et 5 seq. A state court action can only be removed if it could have originally been brought in 6 federal court. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); Duncan v. 7 Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). Thus, for an action to be removed on the 8 basis of federal question jurisdiction, the complaint must establish either that federal law 9 creates the cause of action or that the plaintiff’s right to relief necessarily depends on the 10 resolution of substantial questions of federal law. Franchise Tax Bd. of Cal. v. Constr. 11 Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 10–11 (1983). Additionally, 12 federal courts have jurisdiction over an action involving citizens of different states when 13 the amount in controversy exceeds $75,000. 28 U.S.C. § 1332. 14 “The burden of establishing federal jurisdiction is on the party seeking removal, 15 and the removal statute is strictly construed against removal jurisdiction.” Nishimoto v. 16 Federman-Bachrach & Assocs., 903 F.2d 709, 712 n.3 (9th Cir. 1990). “Federal 17 jurisdiction must be rejected if there is any doubt as to the right of removal in the first 18 instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Whether federal 19 jurisdiction exists is governed by the well-pleaded complaint rule. Caterpillar, 482 U.S. 20 at 392. The well-pleaded complaint rule is a “powerful doctrine [that] severely limits the 21 number of cases in which state law ‘creates the cause of action’ that may be initiated in or 22 removed to federal district court . . . .” Franchise Tax Bd., 463 U.S. at 9–10. Under this 23 rule, the federal question must be “presented on the face of the plaintiff’s properly 24 pleaded complaint.” Id.; accord Wayne v. DHL Worldwide Express, 294 F.3d 1179, 1183 25 (9th Cir. 2002). 26 27 28 1 DISCUSSION 2 Here, Defendant indicates in her removal papers that jurisdiction in this Court is 3 based on federal question jurisdiction. See Doc. No. 1 at 1–5. Liberally construing the 4 Notice of Removal, Plaintiff’s state court complaint does not present a federal question of 5 law that would provide this Court with jurisdiction over this matter under 28 U.S.C. 6 § 1331. First, there is no federal question apparent in the state action described in the 7 Notice of Removal, which appears to allege only a simple unlawful detainer cause of 8 action. See Wescom Credit Union v. Dudley, No. CV 10-8203 GAF (SSx), 2010 WL 9 4916578, *2 (C.D. Cal. Nov. 22, 2010) (“An unlawful detainer action does not arise 10 under federal law.”) (citation omitted); IndyMac Federal Bank, F.S.B. v. Ocampo, No. 11 EDCV 09-2337 PA(DTBx), 2010 WL 234828, at *2 (C.D. Cal. Jan. 13, 2010) 12 (remanding an action to state court for lack of subject matter jurisdiction where plaintiff’s 13 complaint contained only an unlawful detainer claim). 14 Second, there is no merit to Defendant’s contention that federal question 15 jurisdiction exists because Defendant’s anticipated defenses and counterclaims may raise 16 issues of federal law. Neither defenses nor counterclaims are considered in evaluating 17 whether a federal question appears on the face of a Plaintiff’s complaint. Vaden v. 18 Discover Bank, 556 U.S. 49, 60 (2009) (federal question jurisdiction cannot “rest upon an 19 actual or anticipated counterclaim”); Valles v. Ivy Hill Corp., 410 F.3d 1071, 1075 (9th 20 Cir. 2005) (“A federal law defense to a state-law claim does not confer jurisdiction on a 21 22 23 1 It is unclear if Defendant attached the entirety of Plaintiff’s Complaint to the Notice of Removal. See Doc. No. 1. It is similarly unclear if Defendant has been properly served a copy of the Complaint in its 24 entirety as Defendant states that “[o]n 2/28/23, the Defendant was improperly served with a copy of the 25 complaint in this action.” Id. at 1. In any event, the failure to attach a complaint, as required by 28 U.S.C. § 1446(a) when a defendant has been served, is a non-jurisdictional procedural defect and cannot, 26 alone, provide the basis for a district court to remand the matter sua sponte. See Kelton Arms Condo. Owners Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192–93 (9th Cir. 2003) (“[W]e hold that the 27 district court cannot remand sua sponte for defects in removal procedure.”); see also Gerber v. FCA US LLC, No. 17-CV-0518-AJB-BGS, 2017 U.S. Dist. LEXIS 97641, at *14–15 (S.D. Cal. June 23, 2017) 28 | || federal court, even if the defense is that of federal preemption and is anticipated in the 2 || plaintiff's complaint.”); Caterpillar, 482 U.S. at 393 (“[I]t is now settled law that a case 3 ||may not be removed to federal court on the basis of a federal defense.”) (emphasis in 4 || original). Accordingly, to the extent Defendant’s anticipated defenses and counterclaims 5 be based on alleged violations of federal law, those defenses and counterclaims 6 || cannot provide a basis for federal question jurisdiction. 7 Further, although not raised by Defendant, there is no diversity jurisdiction in this 8 ||matter. The Notice of Removal does not demonstrate that the amount in controversy 9 ||exceeds $75,000, and the face of the state court complaint cover sheet clearly 10 || demonstrates that Plaintiff seeks damages in an amount less than $10,000. See Doc. 11 || No. 1-2 at 1. Moreover, Defendant, a citizen of California, see Doc. No. 1-1 at 1, may 12 properly remove this action based on diversity jurisdiction. Under 28 U.S.C. 13 1441(b), removal is permitted in diversity cases only when “none of the parties in 14 interest properly joined and served as defendants is a citizen of the State in which such 15 |} action is brought.” 16 CONCLUSION 17 Based on the foregoing, Defendant has not adequately established a basis for this 18 || Court’s subject matter jurisdiction. Accordingly, the Court sua sponte REMANDS this 19 || action back to state court.” See 28 U.S.C. § 1447(c). The Clerk of Court is instructed to 20 return the case to state court forthwith and close this action. 21 IT IS SO ORDERED. 22 Dated: March 24, 2023 23 Mikel MM - /hisblr 24 HON. MICHAEL M. ANELLO 25 United States District Judge 26 27 28 2 Because the Court lacks subject matter jurisdiction, the Court DENIES AS MOOT Defendant’s motion to proceed IFP. See Doc. No. 2.