1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 OMAR SURKHI, Case No. 21-cv-00916-BAS-NLS 11 Plaintiff, ORDER: 12 v. (1) REMANDING ACTION FOR 13 LACK OF SUBJECT MATTER CHANTELLE KING, JURISDICTION; 14 Defendant. AND 15 (2) TERMINATING MOTION FOR 16 LEAVE TO PROCEED IN FORMA PAUPERIS (ECF No. 4) 17 18 On May 13, 2021, Defendant Chantelle King, proceeding pro se, removed this 19 matter to federal court based on federal question jurisdiction under 28 U.S.C. § 1331. 20 (Notice of Removal, ECF No. 1.) On the same day, she filed an Answer to the Complaint 21 (ECF No. 2) and a motion seeking leave to proceed In Forma Pauperis (“IFP”). (ECF 22 No. 4.) 23 Courts address the issue of subject matter jurisdiction first, as “[t]he requirement 24 that jurisdiction be established as a threshold matter ‘spring[s] from the nature and limits 25 of the judicial power of the United States and is ‘inflexible and without exception.’” Steel 26 Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998) (quoting Mansfield, C. & 27 L.M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884)). “Federal courts are courts of limited 28 jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 1 “They possess only that power authorized by Constitution and statute, which is not to be 2 expanded by judicial decree.” Id. (internal citations omitted). “It is to be presumed that 3 a cause lies outside this limited jurisdiction, and the burden of establishing the contrary 4 rests upon the party asserting jurisdiction.” Id. (internal citations omitted); see 5 also Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006). 6 Consistent with the limited jurisdiction of federal courts, the removal statute is 7 strictly construed against removal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 8 (9th Cir. 1992); see also Sygenta Crop Prot. v. Henson, 537 U.S. 28, 32 9 (2002); O’Halloran v. Univ. of Wash., 856 F.2d 1375, 1380 (9th Cir. 1988). “The ‘strong 10 presumption’ against removal jurisdiction means that the defendant always has the burden 11 of establishing that removal is proper.” Gaus, 980 F.2d at 566; see also Nishimoto v. 12 Federman–Bachrach & Assoc., 903 F.2d 709, 712 n.3 (9th Cir. 1990); O’Halloran, 856 13 F.2d at 1380. “Federal jurisdiction must be rejected if there is any doubt as to the right 14 of removal in the first instance.” Gaus, 980 F.2d at 566. 15 It is well-established that “a district court’s duty to establish subject matter 16 jurisdiction is not contingent upon the parties’ arguments.” See United Inv’rs Life Ins. 17 Co. v. Waddell & Reed Inc., 360 F.3d 960, 966 (9th Cir. 2004). Courts may consider the 18 issue sua sponte. Demery v. Kupperman, 735 F.2d 1139, 1149 n.8 (9th Cir. 1984). 19 Indeed, the Supreme Court has emphasized that “district courts have an ‘independent 20 obligation to address subject-matter jurisdiction sua sponte.’” Grupo Dataflux v. Atlas 21 Glob. Grp., L.P., 541 U.S. 567, 593 (2004) (quoting United States v. S. Cal. Edison 22 Co., 300 F. Supp. 2d 964, 972 (E.D. Cal. 2004)). 23 Here, Defendant invokes federal question jurisdiction under 28 U.S.C. § 1331 24 because, she alleges, her Answer filed in the state court lawsuit was not sustained and 25 “depends on the determination of Defendant’s rights and Plaintiff’s duties under federal 26 law.” (Removal at 2.) The case removed here is a residential unlawful detainer action 27 stating one cause of action under Cal. Code Civ. P. § 1946(b)(1) and (b)(2). (Compl. ¶ 8, 28 Ex. A to Removal, ECF No. 1-2.) Therefore, the action arises exclusively under 1 California state law. Nonetheless, Defendant argues that federal question exists because 2 Plaintiff’s Notice to Quit failed to comply with California’s procedures under Cal. Code 3 Civ. P. § 1161(2). (Removal at 2.) 4 Section 1331 provides that “district courts shall have original jurisdiction of all civil 5 actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. 6 § 1331. “[T]he presence or absence of federal-question jurisdiction is governed by the 7 ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when 8 a federal question is presented on the face of the plaintiff’s properly pleaded 9 complaint.” Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998) (quoting Caterpillar 10 Inc. v. Williams, 482 U.S. 386, 392 (1987)). A federal “defense is not part of a plaintiff’s 11 properly pleaded statement of his or her claim.” Id. (citing Metro. Life Ins. Co. v. 12 Taylor, 481 U.S. 58, (1987)). A case, therefore, may not be removed to federal court 13 based on a federal defense “even if the defense is anticipated in the plaintiff’s complaint, 14 and even if both parties admit that the defense is the only question truly at issue in the 15 case.” Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 16 1, 14 (1983); see also Rivet, 522 U.S. at 475. 17 The Court is not convinced that federal question jurisdiction exists under 28 U.S.C. 18 § 1331. Plaintiff’s Complaint does not raise a federal issue. At best, Defendant raises a 19 federal defense to Plaintiff’s action based on the Fourteenth Amendment’s due process 20 clause. But, even so, this Court lacks federal question jurisdiction under the well-pleaded 21 complaint rule. See Deutsche Bank Nat’l Tr. Co. v. Forteza, No. CV 12-1561 CAS (EX), 22 2012 WL 12897033, at *1 (C.D. Cal. Mar. 9, 2012) (citing McAtee v. Capital One, F.S.B., 23 479 F.3d 1143, 1145 (9th Cir. 2007)) (“A defendant’s attempt at creating federal subject 24 matter jurisdiction by adding claims or defenses to a notice of removal must fail.”); see 25 also NBG Properties, LLC v. Distefano, No. CV 13-03863-CAS (JCx), 2013 WL 26 12155189, at *1 (C.D. Cal. June 25, 2013) (“Defendant cannot create federal subject 27 matter jurisdiction by attempting to raise a defense under the Fourteenth Amendment to 28 the U.S. Constitution or other federal law.”).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 OMAR SURKHI, Case No. 21-cv-00916-BAS-NLS 11 Plaintiff, ORDER: 12 v. (1) REMANDING ACTION FOR 13 LACK OF SUBJECT MATTER CHANTELLE KING, JURISDICTION; 14 Defendant. AND 15 (2) TERMINATING MOTION FOR 16 LEAVE TO PROCEED IN FORMA PAUPERIS (ECF No. 4) 17 18 On May 13, 2021, Defendant Chantelle King, proceeding pro se, removed this 19 matter to federal court based on federal question jurisdiction under 28 U.S.C. § 1331. 20 (Notice of Removal, ECF No. 1.) On the same day, she filed an Answer to the Complaint 21 (ECF No. 2) and a motion seeking leave to proceed In Forma Pauperis (“IFP”). (ECF 22 No. 4.) 23 Courts address the issue of subject matter jurisdiction first, as “[t]he requirement 24 that jurisdiction be established as a threshold matter ‘spring[s] from the nature and limits 25 of the judicial power of the United States and is ‘inflexible and without exception.’” Steel 26 Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998) (quoting Mansfield, C. & 27 L.M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884)). “Federal courts are courts of limited 28 jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 1 “They possess only that power authorized by Constitution and statute, which is not to be 2 expanded by judicial decree.” Id. (internal citations omitted). “It is to be presumed that 3 a cause lies outside this limited jurisdiction, and the burden of establishing the contrary 4 rests upon the party asserting jurisdiction.” Id. (internal citations omitted); see 5 also Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006). 6 Consistent with the limited jurisdiction of federal courts, the removal statute is 7 strictly construed against removal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 8 (9th Cir. 1992); see also Sygenta Crop Prot. v. Henson, 537 U.S. 28, 32 9 (2002); O’Halloran v. Univ. of Wash., 856 F.2d 1375, 1380 (9th Cir. 1988). “The ‘strong 10 presumption’ against removal jurisdiction means that the defendant always has the burden 11 of establishing that removal is proper.” Gaus, 980 F.2d at 566; see also Nishimoto v. 12 Federman–Bachrach & Assoc., 903 F.2d 709, 712 n.3 (9th Cir. 1990); O’Halloran, 856 13 F.2d at 1380. “Federal jurisdiction must be rejected if there is any doubt as to the right 14 of removal in the first instance.” Gaus, 980 F.2d at 566. 15 It is well-established that “a district court’s duty to establish subject matter 16 jurisdiction is not contingent upon the parties’ arguments.” See United Inv’rs Life Ins. 17 Co. v. Waddell & Reed Inc., 360 F.3d 960, 966 (9th Cir. 2004). Courts may consider the 18 issue sua sponte. Demery v. Kupperman, 735 F.2d 1139, 1149 n.8 (9th Cir. 1984). 19 Indeed, the Supreme Court has emphasized that “district courts have an ‘independent 20 obligation to address subject-matter jurisdiction sua sponte.’” Grupo Dataflux v. Atlas 21 Glob. Grp., L.P., 541 U.S. 567, 593 (2004) (quoting United States v. S. Cal. Edison 22 Co., 300 F. Supp. 2d 964, 972 (E.D. Cal. 2004)). 23 Here, Defendant invokes federal question jurisdiction under 28 U.S.C. § 1331 24 because, she alleges, her Answer filed in the state court lawsuit was not sustained and 25 “depends on the determination of Defendant’s rights and Plaintiff’s duties under federal 26 law.” (Removal at 2.) The case removed here is a residential unlawful detainer action 27 stating one cause of action under Cal. Code Civ. P. § 1946(b)(1) and (b)(2). (Compl. ¶ 8, 28 Ex. A to Removal, ECF No. 1-2.) Therefore, the action arises exclusively under 1 California state law. Nonetheless, Defendant argues that federal question exists because 2 Plaintiff’s Notice to Quit failed to comply with California’s procedures under Cal. Code 3 Civ. P. § 1161(2). (Removal at 2.) 4 Section 1331 provides that “district courts shall have original jurisdiction of all civil 5 actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. 6 § 1331. “[T]he presence or absence of federal-question jurisdiction is governed by the 7 ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when 8 a federal question is presented on the face of the plaintiff’s properly pleaded 9 complaint.” Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998) (quoting Caterpillar 10 Inc. v. Williams, 482 U.S. 386, 392 (1987)). A federal “defense is not part of a plaintiff’s 11 properly pleaded statement of his or her claim.” Id. (citing Metro. Life Ins. Co. v. 12 Taylor, 481 U.S. 58, (1987)). A case, therefore, may not be removed to federal court 13 based on a federal defense “even if the defense is anticipated in the plaintiff’s complaint, 14 and even if both parties admit that the defense is the only question truly at issue in the 15 case.” Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 16 1, 14 (1983); see also Rivet, 522 U.S. at 475. 17 The Court is not convinced that federal question jurisdiction exists under 28 U.S.C. 18 § 1331. Plaintiff’s Complaint does not raise a federal issue. At best, Defendant raises a 19 federal defense to Plaintiff’s action based on the Fourteenth Amendment’s due process 20 clause. But, even so, this Court lacks federal question jurisdiction under the well-pleaded 21 complaint rule. See Deutsche Bank Nat’l Tr. Co. v. Forteza, No. CV 12-1561 CAS (EX), 22 2012 WL 12897033, at *1 (C.D. Cal. Mar. 9, 2012) (citing McAtee v. Capital One, F.S.B., 23 479 F.3d 1143, 1145 (9th Cir. 2007)) (“A defendant’s attempt at creating federal subject 24 matter jurisdiction by adding claims or defenses to a notice of removal must fail.”); see 25 also NBG Properties, LLC v. Distefano, No. CV 13-03863-CAS (JCx), 2013 WL 26 12155189, at *1 (C.D. Cal. June 25, 2013) (“Defendant cannot create federal subject 27 matter jurisdiction by attempting to raise a defense under the Fourteenth Amendment to 28 the U.S. Constitution or other federal law.”). As such, Defendant can raise her defense in 1 || state court, but she cannot rely on it to remove this action to this Court. See, e.g., Aurora 2 || Loan Servs., LLC. v. Martinez, No. C10-01260 HRL, 2010 WL 1266887, at *1 (N.D. Cal. 3 || Mar. 29, 2010).! 4 Defendant has failed to meet her burden of establishing this Court’s subject matter 5 |] jurisdiction under 28 U.S.C. § 1331. She does not allege any other basis for such 6 || jurisdiction in her Notice of Removal. Accordingly, the Court REMANDS this action to 7 || the San Diego Superior Court for lack of subject matter jurisdiction. See 28 U.S.C. § 8 || 1447(c) (If at any time before final judgment it appears that the district court lacks 9 || subject matter jurisdiction, the case shall be remanded.”’). Further, because the Court 10 || lacks jurisdiction over this case, the Court TERMINATES Defendant’s motion for leave 11 || to proceed IFP (ECF No. 4). 12 IT IS SO ORDERED. 13 44 An nha ait 14 || DATED: May 17, 2021 Ci Wg J AA Hou. Cynthia Bashant 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 ' Plaintiff also states that supplemental jurisdiction exists with respect to any remaining claims 26 ||pursuant to 28 U.S.C. § 1367. (Removal at 2.) However, this Court has no authority to adjudicate supplemental claims under § 1367 where there is no underlying subject matter jurisdiction. Herman 27 Revocable Tr. v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001) (“[Section 1367]’s plain language 28 makes clear that supplemental jurisdiction may only be invoked when the district court has a hook of original jurisdiction on which to hang it.”).