Tseng v. Gogue ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 SARIA TSENG, Case No. 20-cv-00932-NC 11 Plaintiff, ORDER TO SHOW CAUSE RE: 12 SUBJECT MATTER v. JURISDICTION 13 JOEY GOGUE, et al., 14 Defendants. 15 16 17 Plaintiff Saria Tseng sued defendants Joey and Miriam Gogue in Santa Clara 18 County Superior Court for unlawful detainer. See Dkt. No. 1. Defendants removed 19 Tseng’s lawsuit citing the Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601 et seq., as the 20 basis for federal question jurisdiction. In particular, Defendants claim that Tseng violated 21 the FHA by discriminating against them. See Dkt. No. 1 ¶¶ 9–25. 22 Defendants’ notice of removal, however, contains two defects. First, it is well- 23 settled that for removal jurisdiction, the federal question must be presented by the 24 plaintiff’s complaint. See Jasper v. Maxim Integrated Prods., Inc., 108 F. Supp. 3d 757, 25 765 (N.D. Cal. 2015) (“[F]ederal question jurisdiction exists only when ‘a federal question 26 is presented on the face of plaintiff’s properly pleaded complaint.’”) (quoting Caterpillar, 27 Inc. v. Williams, 482 U.S. 386, 392 (1987)). Thus, “removability cannot be created by 1 Life Ins. Co., 765 F.2d 815, 822 (9th Cir. 1985) (quoting Rath Packing Co. v. Becker, 530 2 || F.2d 1295, 1303 (9th Cir. 1975)). Here, Tseng’s complaint raises only a state-law 3 || unlawful detainer claim. Because Defendants’ FCA defenses or counter-claims cannot 4 || form the basis of federal question jurisdiction, it is not apparent why this lawsuit belongs 5 || in this Court. 6 Second, “[a]ll defendants must join in a removal petition with the exception of 7 || nominal parties.” Hewitt v. Stanton, 798 F.2d 1230, 1232 (9th Cir. 1986) (citing 28 U.S.C. 8 || § 1446(b)). “A defendant is a nominal party where his role is limited to that of a 9 || stakeholder or depositary.” Jd. at 1233. Although Defendants’ removal petition notes that 10 || “[aJll Defendants consent to the removal of this action” (Dkt. No. 1 § 27), two defendants 11 || in the state-court lawsuit were not named as parties to this action. See id. at 8. It is unclear 12 || whether those two defendants joined Defendants’ removal petition. 13 Thus, removal pursuant to 28 U.S.C. § 1443 appears improper. Accordingly, the C 14 || Court ORDERS Defendants to show cause in writing by February 24, 2020, why this case 3 |} should not be remanded to Santa Clara County Superior Court. The Court will not award 16 || attorneys’ fees and costs in connection with this order. However, the Court alerts all 5 17 || parties that attorneys’ fees and costs incurred as a result of this removal can be awarded to 5 18 || Tseng. See 28 U.S.C. § 1447(c). 19 The Court directs Defendants to the Federal Pro Se Program, which provides free 20 || information and limited-scope legal advice to pro se litigants in federal civil cases. The 21 || Federal Pro Se Program is located in Room 2070 in the San Jose United States Courthouse, 22 || and is available by appointment Monday to Thursday 9:00 a.m.—4:00 p.m. The Program 23 || can be reached by calling (408) 297-1480. 24 IT IS SO ORDERED. 25 26 || Dated: February 10, 2020 h-_———— _ 27 United States Magistrate Judge 28