Fog v. Jackson ( 2024 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Connor Fog, No. CV-24-01968-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Sandra Jackson, et al., 13 Defendants. 14 15 On July 31, 2024, Plaintiff Connor Fog (“Plaintiff”) filed a complaint in Arizona 16 state court—more specifically, in the Maricopa County Justice Court for the Manistee 17 Precinct—against Defendant Sandra Jackson (“Defendant”). (Doc. 1 at 4.) The complaint, 18 which is entitled “Eviction Actions,” alleges that both Plaintiff and Defendant are residents 19 of Arizona and asserts state-law claims for (1) non-payment of rent, in violation of A.R.S. 20 § 33-1368(B); and (2) demand to vacate premises for forcible entry of detainer, pursuant 21 to A.R.S. § 12-1172 et seq. (Id.) 22 On August 6, 2024, Defendant, who is proceeding pro se, filed a notice of removal. 23 (Id. at 1.) The notice identifies “FEDERAL QUESTION JURISDICTION” as the basis 24 for the removal and explains: “The Complaint seeks damages from alleged ‘racist and 25 discriminatory’ actions ascribed to the defendant related to their treatment of plaintiffs. 26 Although the complaint does not identify a statute or law under which Plaintiffs base their 27 claim, the claim makes allegations regarding the deprivation of equal rights.” (Id.) 28 Additionally, the notice asserts that the “Complaint alleges violations of the Fair Housing 1 Act, 42 U.S.C. § 3604(B) and 42 U.S.C. § 3604(C).” (Id. at 2.) 2 Upon removal, this action was assigned to Magistrate Judge Metcalf. (Doc. 3.) On 3 August 21, 2024, Judge Metcalf issued a report and recommendation (“R&R”) 4 recommending that this action be remanded to state court for two independent reasons: (1) 5 Defendant had not timely paid the filing fee or filed a valid application to proceed in forma 6 pauperis; and (2) the removal notice failed to identify a sufficient jurisdictional basis for 7 the removal effort, because although the notice characterized the complaint as asserting 8 various federal claims, “[t]he undersigned reviewed the only complaint attached to the 9 Notice of Removal, and could not identify any portion of that pleading which references 10 civil rights claims or violations or Fair Housing Act violations, or any other federal 11 question. . . . The undersigned now finds the complaint is a straightforward, state landlord- 12 tenant law eviction complaint, and on its face establishes no federal question.” (Doc 9 at 13 1-3.) The R&R further provided that “the parties shall have fourteen (14) days from the 14 date of service of a copy of this recommendation within which to file specific written 15 objections with the Court.” (Id. at 3-4.) 16 On September 3, 2024, upon the election of one of the parties, this action was 17 reassigned to the undersigned judge. (Doc. 11.) 18 On September 3 and 4, 2024, Defendant filed two documents: (1) a response to an 19 earlier order to show cause (“OSC”); and (2) a renewed application to proceed in forma 20 pauperis. (Docs. 13, 14.) 21 Given this backdrop, the Court concludes for two independent reasons that this 22 action should be remanded to Arizona state court. First, Defendant did not meaningfully 23 object or otherwise respond to the jurisdictional analysis contained in the R&R and the 14- 24 day deadline for objecting has now expired. See, e.g., Thomas v. Arn, 474 U.S. 140, 149- 25 50 (1985) (“It does not appear that Congress intended to require district court review of a 26 magistrate’s factual or legal conclusions, under a de novo or any other standard, when 27 neither party objects to those findings.”); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 28 (D. Ariz. 2003) (“[N]o review is required of a magistrate judge’s report and 1 || recommendation unless objections are filed.”’). See also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“[T]he district judge must review the magistrate judge’s || findings and recommendations de novo if objection is made, but not otherwise.”). Second, 4|| putting aside the R&R, “[t]he burden of establishing federal jurisdiction is upon the party 5 || seeking removal, and the removal statute is strictly construed against removal jurisdiction.” Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988) (citations omitted). Here, the removal notice is insufficient to establish the existence of federal jurisdiction 8 || because although Plaintiff mischaracterizes the complaint as asserting various federal || claims, the complaint in fact only asserts a pair of state-law claims. 10 Accordingly, 11 IT IS ORDERED that: 12 1. The R&R (Doc. 9) is adopted. 13 2. This action is remanded to the Maricopa County Justice Court for the Manistee Precinct. 15 3. Defendant’s renewed application to proceed in forma pauperis (Doc. 14) is denied as moot. 17 Dated this 9th day of September, 2024. 18 19 Lom ee” 20 f CC —— Dominic W. Lanza 21 United States District Judge 22 23 24 25 26 27 28 _3-