Carmel Terrace, L.P. v. Downey ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CARMEL TERRACE, L.P., Case No.: 3:19-cv-02362-WQH-WVG 12 Plaintiff, ORDER 13 v. 14 JAMES DOWNEY; and DOES 1 to 10, inclusive, 15 Defendants. 16 HAYES, Judge: 17 The matter before the Court is Defendant’s Motion for Leave to Proceed in Forma 18 Pauperis. (ECF No. 2). 19 PROCEDURAL BACKGROUND 20 On July 12, 2019, Plaintiff Carmel Terrace, L.P. initiated this action by filing a 21 Complaint in the Superior Court of California for the County of San Diego, assigned case 22 number 37-2019-00036259-CL-UD-CTL, against Defendant James Downey. (ECF No. 1- 23 2 at 7). 24 On December 10, 2019, Defendant filed a Notice of Removal. (ECF No. 1). The 25 same day, Defendant filed a Motion for Leave to Proceed in Forma Pauperis. (ECF No. 26 2). 27 28 1 DISCUSSION 2 The court has an independent duty to assess whether federal subject matter 3 jurisdiction exists. See United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 4 967 (9th Cir. 2004) (stating that “the district court had a duty to establish subject matter 5 jurisdiction over the removed action sua sponte, whether the parties raised the issue or 6 not”); accord Rains v. Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir. 1996). Because 7 subject matter jurisdiction may not be waived by the parties, a district court must remand 8 a removed case if it lacks jurisdiction over the matter. Kelton Arms Condominium Owners 9 Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003); accord Sparta 10 Surgical Corp. v. Nat’l Ass’n of Sec. Dealers, Inc., 159 F.3d 1209, 1211 (9th Cir. 1998); 11 see also 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the 12 district court lacks subject matter jurisdiction, the case shall be remanded.”). 13 The federal removal statute provides, in relevant part: 14 Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have 15 original jurisdiction, may be removed by the defendant or the defendants, to 16 the district court of the United States for the district and division embracing the place where such action is pending. 17 18 28 U.S.C. § 1441(a). “The defendant bears the burden of establishing that removal is 19 proper.” Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th 20 Cir. 2009). “The removal statute is strictly construed against removal jurisdiction,” id., 21 and removal jurisdiction “‘must be rejected if there is any doubt as to the right of removal 22 in the first instance’” Geographic Expeditions, Inc. v. Estate of Lhotka, 599 F.3d 1102, 23 1106 (9th Cir. 2010) (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per 24 curiam)). 25 District courts have federal question jurisdiction over “all civil actions that arise 26 under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “A case 27 ‘arises under’ federal law either where federal law creates the cause of action or ‘where the 28 vindication of a right under state law necessarily turn[s] on some construction of federal 1 law.’” Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002) 2 (modification in original) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 3 463 U.S. 1, 8-9 (1983)). “[T]he presence or absence of federal-question jurisdiction is 4 governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction 5 exists only when a federal question is presented on the face of the plaintiff's properly 6 pleaded complaint.” Placer Dome, Inc., 582 F.3d at 1091; Ultramar Am. Ltd. v. Dwelle, 7 900 F.2d 1412, 1414 (9th Cir. 1990) (“Ordinarily, the existence of federal question 8 jurisdiction is determined from the face of the complaint.”). “In determining the existence 9 of removal jurisdiction, based upon a federal question, the court must look to the complaint 10 as of the time the removal petition was filed. Jurisdiction is based on the complaint as 11 originally filed” Abada v. Charles Schwab & Co., 300 F.3d 1112, 1117 (9th Cir. 2002) 12 (citation and quotation marks omitted). The Supreme Court has held that “a case may not 13 be removed to federal court on the basis of a federal defense, ... even if the defense is 14 anticipated in the plaintiff’s complaint.” Rivet v. Regions Bank, 522 U.S. 470, 475 (1998) 15 (citing Franchise Tax Bd. Of Cal. v. Construction Laborers Vacation Trust for Southern 16 Cal., 463 U.S. 1, 14 (1983)). The federal element must be “direct and essential” to the 17 claim, as opposed to “incidental” or “attenuated.” Berg v. Leason, 32 F.3d 422, 424 (9th 18 Cir. 1994). 19 Defendant contends that there is “original jurisdiction over the Unlawful Detainer 20 Action because it is a federally related action under the Fair Debt Collections Practices 21 Act.” (ECF No. 1 at 2-3). The underlying state action is based upon state law. The only 22 claim Plaintiff asserts is for unlawful detainer. Plaintiff does not state any federal causes 23 of action or prayers for relief. The federal element is not “direct and essential” to the claim 24 and is “incidental” or “attenuated.” See Berg v. Leason, 32 F.3d 422, 424 (9th Cir. 1994). 25 The Court concludes that the underlying action does not include a federal issue and that 26 removal is not permitted. 27 28 1 CONCLUSION 2 IT IS HEREBY ORDERED that this action is REMANDED to the Superior Court 3 || for the State of California, County of San Diego, where it was originally filed under case 4 || number 37-2019-00036259-CL-UD-CTL. 5 IT IS FURTHER ORDERED that Defendant’s Motion to Proceed in Forma Pauperis 6 (ECF No. 2) is DENIED as moot. 7 || Dated: December 11, 2019 BME: Me Z. A a 8 Hon. William Q. Hayes 9 United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28