(PS)Mudaliar v. Prasad ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SASHI R. MUDALIAR, Case No. 2:22-cv-01034-TLN-JDP (PS) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT THIS ACTION BE SUA SPONTE 13 v. REMANDED FOR LACK OF SUBJECT MATTER JURISDICTION 14 RAJESH PRASAD, 15 Defendant. 16 17 Plaintiff commenced this action in the Sacramento County Superior Court, seeking, 18 among things, a judgment partitioning by sale real property that is jointly owned by the parties. 19 On June 14, 2022, defendant, who is proceeding without counsel, removed this case to this court. 20 ECF No. 1. In the notice of removal, defendant states that this court has federal question 21 jurisdiction pursuant to 28 U.S.C. § 1331. Contrary to that contention, the complaint does not 22 assert a federal claim or otherwise establish subject matter jurisdiction. I therefore recommend 23 that this action be remanded sua sponte to state court.1 24 A district court has an independent duty to ascertain its jurisdiction and may remand sua 25 sponte for lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c). “The burden of 26 1 Defendant has also filed an application to proceed in forma pauperis pursuant to 28 27 U.S.C. § 1915. ECF No. 2. In light of the recommendation that this action be remanded for lack of subject matter jurisdiction, I decline to address defendant’s application to proceed in forma 28 pauperis. 1 establishing federal jurisdiction is on the party seeking removal, and the removal statute is strictly 2 construed against removal jurisdiction.” Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th 3 Cir. 1988). “Federal jurisdiction must be rejected if there is any doubt as to the right of removal 4 in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 5 The notice of removal states that this case presents a federal question because the 6 complaint asserts a claim for partition of real property. ECF No. 1 at 3. The presence or absence 7 of federal question jurisdiction “is governed by the ‘well-pleaded complaint rule,’ which provides 8 that federal jurisdiction exists only when a federal question is presented on the face of plaintiff’s 9 properly pleaded complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). This is the 10 case where the complaint “establishes either that [1] federal law creates the cause of action or that 11 [2] the plaintiff’s right to relief necessarily depends on resolution of a substantial question of 12 federal law.” Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage Leasehold & 13 Easement, 524 F.3d 1090, 1100 (9th Cir. 2008) (quoting Franchise Tax Bd. v. Constr. Laborers 14 Vacation Trust, 463 U.S. 1, 27-28 (1983)). 15 Contrary to defendant’s contention, plaintiff’s claim for partition of real property is 16 brought under state, not federal, law. ECF No. 1 at 1, 8-9; see Cal. Code Civ. P. § 872.210. 17 Likewise, the complaint’s two other claims, for accounting and common count, are also based on 18 California law. ECF No. 1 at 10-11. Accordingly, defendant has not satisfied his burden of 19 establishing federal question jurisdiction under 28 U.S.C. § 1331.2 20 Accordingly, it is hereby RECOMMENDED that this case be REMANDED sue sponte to 21 the Superior Court of the State of California in and for the County of Sacramento. 22 I submit these findings and recommendations to the district judge under 28 U.S.C. 23 § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 24 2 Defendant also has not established that this court has diversity jurisdiction, since the 25 notice of removal does not establish diversity of the parties. See 28 U.S.C. § 1332. It also appears that defendant is a citizen of California, which would prevent removal based solely on 26 diversity jurisdiction. See 28 U.S.C. § 1441(b) (prohibiting removal based solely on diversity 27 jurisdiction “if any of parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”). 28 1 | Eastern District of California. The parties may, within 14 days of the service of the findings and 2 || recommendations, file written objections to the findings and recommendations with the court. 3 | Such objections should be captioned “Objections to Magistrate Judge’s Findings and 4 | Recommendations.” The district judge will review the findings and recommendations under 28 5 | U.S.C. § 636(b)(1)(C). 6 7 IT IS SO ORDERED. Dated: _ July 12, 2022 9 JEREMY D. PETERSON 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28