(UD) (PS) Realty Advisors, Incorporated v. Ojiaku ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 1] REALTY ADVISORS, INC. No. 2:23-cv-2073 KJM CKD (PS) (UD) Plaintiff, ORDER 13 v: 14 | NNEOMAN. OJIAKU, CHIMAIHE P. OJIAKU, AND DOES 1-10 inclusive Defendants. 16 17 On September 22, 2023, defendant Chimaihe P. Ojiaku, proceeding pro se, removed this 18 | unlawful detainer action from Sacramento County Superior Court. Notice of Removal, ECF 19 | No. 1. Ojiaku also filed a motion to proceed in forma pauperis. Mot., ECF No. 2. As explained 20 | below, the court remands the case to the Sacramento County Superior Court and denies as 21 | moot Ojiaku’s motion to proceed in forma pauperis. 22 | I. SUBJECT MATTER JURISDICTION 23 A. Legal Standard 24 When a case “of which the district courts of the United States have original jurisdiction” is 25 | initially brought in state court, a defendant may remove it to federal court. 28 U.S.C. § 1441(a). 26 | There are two primary bases for federal subject matter jurisdiction: (1) federal question 27 | jurisdiction under 28 U.S.C. § 1331, and (2) diversity jurisdiction under 28 U.S.C.§ 1332. 1 Under § 1331, district courts have federal question jurisdiction over “all civil actions 2 arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Under 3 the longstanding well-pleaded complaint rule, a suit “arises under” federal law “only when the 4 plaintiff’s statement of his own cause of action shows that it is based upon [federal law].” 5 Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908). Federal question jurisdiction 6 cannot rest upon an actual or anticipated defense or counterclaim. Vaden v. Discover Bank, 7 556 U.S. 49, 60 (2009). 8 Under § 1332, district courts have diversity-of-citizenship jurisdiction where the amount 9 in controversy exceeds $75,000 and the parties are in complete diversity. 28 U.S.C. § 1332. 10 “Where it is not facially evident from the complaint that more than $75,000 is in controversy, the 11 removing party must prove, by a preponderance of the evidence, that the amount in controversy 12 meets the jurisdictional threshold.” Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 13 1090 (9th Cir. 2003) (per curiam). 14 If neither federal question jurisdiction nor diversity jurisdiction exist, 28 U.S.C. § 1443 15 could provide for removal. In relevant part, § 1443(1) allows for removal of civil or criminal 16 actions brought in state court “[a]gainst any person who is denied or cannot enforce in the courts 17 of such State a right under any law providing for the equal civil rights of citizens of the United 18 States, or of all persons within the jurisdiction thereof.” 28 U.S.C. § 1443. Under § 1443(1), a 19 petition for removal must abide by a two-part test articulated in Georgia v. Rachel. See Georgia 20 v. Rachel, 384 U.S. 780, 788-92, 794-804 (1966). “First, the petitioners must assert, as a defense 21 to the prosecution, rights that are given to them by explicit statutory enactment protecting equal 22 racial civil rights.” California v. Sandoval, 434 F.2d 635, 636 (9th Cir.1970). “Second, 23 petitioners must assert that the state courts will not enforce that right, and that allegation must be 24 supported by reference to a state statute or a constitutional provision that purports to command 25 the state courts to ignore the federal rights.” Id. 26 A federal district court may remand a case sua sponte where a defendant has not 27 established federal jurisdiction. See 28 U.S.C. § 1447(c) (“If at any time before final judgment it 28 appears that the district court lacks subject matter jurisdiction, the case shall be remanded . . . .”); 1 Enrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988) (citing Wilson v. Republic 2 Iron & Steel Co., 257 U.S. 92, 97 (1921)). 3 B. Discussion 4 Ojiaku’s Notice of Removal asserts the court has federal question jurisdiction under 5 § 1331 “on the factual basis that the unlawful detainer action was filed against the Defendant and 6 that racial discrimination was the cause of filing the case,” under 28 U.S.C. § 1443. Notice of 7 Removal, at 1-2. Realty Advisors’ complaint asserts only a claim for unlawful detainer, which is 8 a matter of state law. See id. at 8-10. 9 Because Realty Advisors’ complaint does not show that it is based upon federal law, the 10 court does not have federal question jurisdiction over the action. Plaintiff is master of the 11 complaint and may, as here, “avoid federal jurisdiction by pleading solely state-law claims.” 12 Valles v. Ivy Hill Corp., 410 F.3d 1071, 1075 (9th Cir. 2005). Ojiaku’s answer or counterclaim 13 cannot serve as the basis for federal question jurisdiction. Vaden, 556 U.S. at 60. 14 Neither does the court appear to have diversity jurisdiction. Realty Advisors’ complaint 15 seeks restitution of the premises, costs of suit incurred, reasonable attorney’s fees and “damages 16 at the rate of $88.40 per day from July 1, 2023, and for each day thereafter that Defendants 17 remain in possession of the Premises.” See Notice of Removal at 10. Because these damages are 18 not likely to total more than $75,000, and Ojiaku has provided no other evidence or allegations as 19 to the amount in controversy, the court cannot exercise diversity jurisdiction over the action. 20 Additionally, § 1443 does not allow for removal. Even if Ojiaku satisfies the first prong 21 of the test in Georgia, the motion for remand will be unsuccessful because he cannot satisfy the 22 second. Though Ojiaku makes a cursory allegation that “Plaintiff used the state law preventing 23 him from raising his federal claims in state court,” he does not reference a particular state statute 24 or constitutional provision. Notice of Removal, at 4; see Patel v. Del Taco, Inc., 446 F.3d 996 25 (9th Cir. 2006) (finding the second prong was not met because petitioners did not point to any 26 “formal expression of state law that prohibits them from enforcing their civil rights in state court 27 nor [did] they point to anything that suggests that the state court would not enforce their civil 1 | rights in the state court proceedings”). As a result, § 1443 does not provide federal jurisdiction, 2 | and the court remands this action to the Sacramento County Superior Court. 3 | HW. REQUEST TO PROCEED IN FORMA PAUPERIS 4 Because the court has determined it lacks subject matter jurisdiction and remands the case 5 | to the Sacramento County Superior Court, it denies Ojiaku’s motion for in forma pauperis 6 | status as moot. 7 | Ill. CONCLUSION 8 For the foregoing reasons, this action is remanded to Sacramento County Superior Court, 9 | and Ojiaku’s motion to proceed in forma pauperis is denied as moot. 10 This resolves ECF No. 2. 1] IT IS SO ORDERED. 12 DATED: October 2, 2023. / / 13 CHIEF ED STATES DISTRICT JUDGE