Urban Elevation LLC v. Alexander

Opinion

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 URBAN ELEVATION LLC, 5 Case No. 2:24-cv-02262-JAD-NJK Plaintiff, 6 REPORT AND RECOMMENDATION v. 7 NICHOLAS ALEXANDER, 8 Defendant. 9 10 Pursuant to 28 U.S.C. § 1915, Defendant is proceeding in this action pro se and has 11 requested authority pursuant to § 1915 to proceed in forma pauperis.1 See Docket No. 1. 12 Defendant also filed a notice of removal. Docket No. 1-1. 13 I. Magistrate Judge Authority 14 The Court first evaluates its authority to address the matter. The authority of the 15 undersigned magistrate judge is derived from 28 U.S.C. § 636, which generally provides 16 magistrate judges with the authority to “hear and determine” non-dispositive matters. See 28 17 U.S.C. § 636(b)(1)(A); see also S.E.C. v. CMKM Diamonds, Inc., 729 F.3d 1248, 1259 (9th Cir. 18 2013). By contrast, dispositive matters are sometimes referred to magistrate judges, but in those 19 circumstances a magistrate judge submits a recommendation to the assigned district judge that is 20 subject to the district judge’s de novo review. See 28 U.S.C. § 636(b)(1)(B); see also CMKM 21 Diamonds, 729 F.3d at 1259-60. Section 636 specifically enumerates eight different types of 22 matters to be treated as “dispositive.” See 28 U.S.C. § 636(b)(1)(A)-(B). When a matter falls 23 outside of those expressly enumerated as dispositive, courts look to the nature and effect of the 24 issued ruling to determine whether the underlying matter should be considered dispositive or non- 25 dispositive. See, e.g., Maisonville v. F2 America, Inc., 902 F.2d 746, 748 (9th Cir. 1990). 26

27 1 Given the Court’s separate duty to ensure that it has subject matter jurisdiction over the dispute before it, the Court need not address whether Defendant qualifies to proceed in forma 28 pauperis. 1 The Ninth Circuit has held that remanding a case to state court, while not case-dispositive, 2 is dispositive of proceedings in federal court and is therefore beyond the authority of magistrate 3 judges. Flam v. Flam, 788 F.3d 1043, 1047 (9th Cir. 2015). As such, the undersigned will issue 4 a report and recommendation to the assigned district judge. See id. 5 II. Standards 6 Cases may be removed from state court to federal court based on the existence of federal 7 subject matter jurisdiction. 28 U.S.C. § 1441. The Court has a duty to ensure that it has subject 8 matter jurisdiction over the dispute before it, an issue it may raise at any time during the 9 proceedings. See, e.g., Fed. R. Civ. P. 12(h)(3). “Federal courts are courts of limited jurisdiction,” 10 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377(1994), and there is a strong 11 presumption against removal jurisdiction, Gaus v. Miles, 980 F.2d. 564, 566 (9th Cir. 1992). 12 “[F]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first 13 instance.” Id. Removing defendants bear the burden of establishing that removal is proper. Id. 14 “A federal court is presumed to lack jurisdiction in a particular case unless the contrary 15 affirmatively appears.” Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 16 F.2d 1221, 1225 (9th Cir. 1989). 17 a. Federal Question Jurisdiction 18 “Removal based on federal-question jurisdiction is reviewed under the longstanding well- 19 pleaded complaint rule.” Hansen v. Grp. Health Coop., 902 F.3d 1051, 1057 (9th Cir. 2018). The 20 “well-pleaded complaint rule provides that federal jurisdiction exists only when a federal question 21 is presented on the face of the plaintiff’s properly pleaded complaint.” California ex rel. v. Locyer 22 v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2003) (internal citations omitted). The federal issue 23 “must be disclosed upon the face of the complaint, unaided by the answer or by the petition for 24 removal.” Id. (internal citations omitted). Moreover, defenses and counterclaims cannot be used 25 to establish federal question jurisdiction. Vaden v. Discover Bank, 556 U.S. 49, 60 (2009). 26 Here, there is no apparent federal question as Defendant seeks to remove an unlawful 27 detainer action and his notice indicates that the underlying claim involves his eviction. Docket 28 Nos. 1-2, 1-1 at 3. Defendant submits that federal question jurisdiction exists because Plaintiff “violate[d] several federal statutes” such as 15 U.S.C 1692 and the Fair Credit Reporting Act. Jd. at 1. Defendant’s defense alleging violations of federal law cannot be used as a basis for federal question jurisdiction. 4 b. Timeliness 5 28 U.S.C. § 1446 provides: 6 The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or 7 otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 8 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served 9 on the defendant, whichever period is shorter. 10 Here, proof of service for the underlying state complaint was filed on September 23, 2024. 11] See Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011) (federal courts may take judicial notice 12|| of state court records). Defendant filed his answer on October 4, 2024, Docket No. 1-2 at 4, and removed the case to this Court on December 6, 2024. See Docket No. 1. Thus, Defendant’s notice 14] of removal is untimely. 15 Accordingly, the undersigned RECOMMENDS that this case be REMANDED to state court for lack of subject matter jurisdiction. In light of this recommendation, the Court DENIES 17|| Defendant’s application to proceed in forma pauperis. Docket No. 1. 18 Dated: December 13, 2024 UA.

20 Unite Stare M apisirate Judge 21 22 NOTICE 23 This report and recommendation is submitted to the United States District Judge assigned 24] to this case pursuant to 28 U.S.C. § 636(b)(1). A party who objects to this report and 25|| recommendation must file a written objection supported by points and authorities within fourteen 26|| days of being served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely objection may waive the right to appeal the district court’s order. Martinez v. YIst, 951 28] F.2d 1153, 1157 (9th Cir. 1991).