(UD) Nahouraii v. Weinerman ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DIANA NAHOURAII, No. 2:21-cv-00090-TLN-JDP 12 Plaintiff, 13 v. SUA SPONTE REMAND ORDER 14 TRACI WEINERMAN, SPENCER WEINERMAN, QUENTIN 15 WEINERMAN, and DOES I through V, Inclusive, 16 Defendants. 17 18 19 This matter is before the Court on Defendants Traci Weinerman, Spencer Weinerman, and 20 Quentin Weinerman’s (collectively, “Defendants”) Notice of Removal. (ECF No. 1.) For the 21 reasons set forth below, the Court hereby REMANDS the action to the Superior Court of 22 California, County of El Dorado, due to lack of subject matter jurisdiction. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 On or about January 4, 2021, Plaintiff Diana Nahouraii (“Plaintiff”) brought an action for 3 unlawful detainer against Defendants and DOES I–V for possession of certain real property 4 located in South Lake Tahoe, California. (ECF No. 1 at 7–34.) On January 19, 2021, Defendants 5 filed a Notice of Removal, removing the unlawful detainer action from the El Dorado County 6 Superior Court. (Id. at 1–9.) 7 II. STANDARD OF LAW 8 28 U.S.C. § 1441 permits the removal to federal court of any civil action over which “the 9 district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). “Removal is 10 proper only if the court could have exercised jurisdiction over the action had it originally been 11 filed in federal court.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). There are two 12 bases for federal subject matter jurisdiction: (1) federal question jurisdiction under 28 U.S.C. § 13 1331, and (2) diversity jurisdiction under 28 U.S.C. § 1332. A district court has federal question 14 jurisdiction in “all civil actions arising under the Constitution, laws, or treaties of the United 15 States.” 28 U.S.C. § 1331. A district court has diversity jurisdiction “where the matter in 16 controversy exceeds the sum or value of $75,000, . . . and is between citizens of different states, 17 or citizens of a State and citizens or subjects of a foreign state . . . .” 28 U.S.C. § 1332(a)(1)–(2). 18 Courts “strictly construe the removal statute against removal jurisdiction,” and “the 19 defendant always has the burden of establishing that removal is proper.” Gaus v. Miles, Inc., 980 20 F.2d 564, 566 (9th Cir. 1992) (per curiam). Furthermore, “[i]f the district court at any time 21 determines that it lacks subject matter jurisdiction over the removed action, it must remedy the 22 improvident grant of removal by remanding the action to state court.” California ex rel. Lockyer 23 v. Dynegy, Inc., 375 F.3d 831, 838, as amended, 387 F.3d 966 (9th Cir. 2004), cert. denied 544 24 U.S. 974 (2005). 25 The “presence or absence of federal question jurisdiction is governed by the ‘well-pleaded 26 complaint rule,’ which provides that federal jurisdiction exists only when a federal question is 27 presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc., 482 U.S. at 28 386. Federal court jurisdiction therefore cannot be based on a defense, counterclaim, cross-claim, 1 or third-party claim raising a federal question. See Vaden v. Discover Bank, 556 U.S. 49 (2009); 2 Hunter v. Philip Morris USA, 582 F.3d 1039, 1042–43 (9th Cir. 2009). 3 III. ANALYSIS 4 Defendants appear to have removed the above-entitled action to this Court based on both 5 federal question jurisdiction and diversity jurisdiction. (See ECF No. 1 at 1 (indicating removal 6 based on federal question, caption noting removal based on “28 U.S.C. § 1441 and 1332 7 [diversity jurisdiction]”).) The Court discusses each below. 8 A. Federal Question Jurisdiction 9 To the extent Defendants seek to establish federal question jurisdiction, they have failed to 10 do so. Defendants claim Plaintiff’s eviction order was terminated based on the “Federal CDC 11 Order” relating to the COVID-19 pandemic.1 (ECF No. 1 at 3.) Defendants further argue a 12 federal question exists as to whether Plaintiff complied with the Federal CDC Order and that the 13 Complaint “implicitly alleges compliance with the Federal CDC order.” (Id.) However, this 14 argument is unavailing. 15 It is clear that the Complaint itself contains only a single claim for unlawful detainer. (Id. 16 at 7–10 (citing Cal. Code Civ. Proc. § 1161(1)).) The instant Complaint therefore relies solely on 17 California state law and does not state any claims under federal law. (See id.) Furthermore, even 18 assuming Defendants intend to raise a federal defense based on Federal Regulation 55292 or 19 assert a counterclaim against Plaintiff’s unlawful detainer action, as articulated above, removal 20 cannot be based upon a defense, counterclaim, cross-claim, or third-party claim raising a federal 21 question. Caterpillar Inc., 482 U.S. at 392; see also Vaden, 556 U.S. at 49, 60–62; Hunter, 582 22 F.3d at 1042–43. Thus, Defendants cannot establish federal question jurisdiction. 23 B. Diversity Jurisdiction 24 To the extent Defendants seek to establish diversity jurisdiction, they have also failed to 25 1 Defendants do not specifically identify the “CDC Order” to which they refer, but the 26 Court assumes that Defendants are referring to the temporary eviction moratorium issued by the 27 Centers for Disease Control and Prevention entitled “Temporary Halt in Residential Evictions to Prevent Further Spread of COVID-19.” 85 Fed. Reg. 55292 (Sept. 4, 2020). This moratorium is 28 effective September 4, 2020 through December 31, 2020. Id. 1 do so. Defendants assert the amount in controversy exceeds $75,000 but they do not assert the 2 parties are citizens of different states. (ECF No. 1 at 4.) Accordingly, Defendants have not met 3 their burden to establish diversity jurisdiction exists in this case. Gaus, 980 F.2d at 566. 4 In short, because the state court Complaint indicates that the only cause of action is one 5 for unlawful detainer, which arises solely under state law, this action does not arise under federal 6 law. And because Defendants have failed to meet their burden of establishing that there is 7 complete diversity between the parties named in the suit and the amount in controversy exceeds 8 $75,000, the Court also does not have diversity jurisdiction. There being no apparent grounds for 9 federal jurisdiction, it is appropriate to remand this case sua sponte for lack of federal diversity 10 and subject matter jurisdiction. See United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 11 F.3d 960, 967 (9th Cir. 2004) (“the district court ha[s] a duty to establish subject matter 12 jurisdiction over the removed action sua sponte, whether the parties raised the issue or not.”). 13 IV. CONCLUSION 14 For the reasons stated above, the Court hereby REMANDS this action to the Superior 15 Court of California for El Dorado County. 16 IT IS SO ORDERED. 17 DATED: January 21, 2021 18 19 20 21 22 23 24 25 26 27 28