Law Office of Guy Levy, Inc. v. Moishes Moving Systems ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LAW OFFICE OF GUY LEVY, INC., Case No.: 21-cv-1212-L (AGS) 12 Plaintiff, ORDER REMANDING ACTION TO 13 v. STATE COURT 14 MOISHE’S MOVING SYSTEMS, LLC, et al., 15 Defendants. 16 17 Defendant Moishe’s Moving Systems LLC removed this action from state court 18 pursuant to 28 U.S.C. §§1331 and 1441, and 49 U.S.C. § 14706. For the reasons stated 19 below, the action is remanded. 20 "Federal courts are courts of limited jurisdiction. They possess only that power 21 authorized by Constitution or statute, which is not to be expanded by judicial decree. It is 22 to be presumed that a cause lies outside this limited jurisdiction, and the burden of 23 establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. 24 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). 25 Consistent with the limited jurisdiction of federal courts, the removal statute is 26 strictly construed against removal. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 27 1992). Furthermore, "[i]f at any time before final judgment it appears that the district 28 1 court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). 2 “[A]ny civil action brought in a State court of which the district courts of the United 3 States have original jurisdiction, may be removed . . ..” 28 U.S.C. § 1441(a). 4 Defendant's notice of removal is based on 28 U.S.C. §1331, which confers 5 "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of 6 the United States." Defendant claims that the allegations in the complaint are governed 7 by the Carmack Amendment to the Interstate Commerce Act, codified at 49 U.S.C. § 8 14706, although Plaintiff chose to assert only state law claims. It appears that Defendant 9 removed the case because violations under 49 U.S.C. § 14706 may be brought against a 10 “delivering carrier in a district court of the United States or in a State court.” 49 U.S.C. § 11 14706(d)(1). Plaintiff raises state law claims for breach of contract, an account stated, for 12 monies had and received, unjust enrichment, fraud, breach of fiduciary duty, conversion, 13 statutory liability, negligence, and declaratory relief. (Complaint 4-12). 14 "[T]he presence or absence of federal-question jurisdiction is governed by the well- 15 pleaded complaint rule, which provides that federal jurisdiction exists only when a 16 federal question is presented on the face of the plaintiff's properly pleaded complaint." 17 Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475 (1998) (internal quotation marks, 18 brackets and citation omitted). "[T]he plaintiff is the 'master' of [his] case, and if []he can 19 maintain [his] claims on both state and federal grounds, []he may ignore the federal 20 question, assert only state claims, and defeat removal." Duncan v. Stuetzle, 76 F.3d 1480, 21 1485 (9th Cir. 1996). 22 Here, Plaintiff chose to allege only state law claims. In such cases, the claim 23 "arises under" federal law only if the claim necessarily raises a stated federal issue, which 24 is actually disputed and substantial, and which a federal forum may entertain without 25 disturbing any congressionally approved balance of federal and state judicial 26 responsibilities. Gunn v. Minton, 568 U.S. 251, 258 (2013). There is no indication that 27 the state law claims raised in the complaint raise a federal issue. To the extent Defendant 28 has implicitly intended to raise a preemption argument, there is no preemption 1 component of 49 U.S.C. § 14706. Even if the statute provided for federal preemption, it 2 an affirmative defense. Lusnak v. Bank of Am., N.A., 883 F.3d 1185, 1194 n.6 (9th Cir. 3 2018). “A defense is not part of a plaintiff's properly pleaded statement of his or her 4 ||claim. Thus, a case may not be removed to federal court on the basis of a federal 5 ||defense.” Rivet, 522 U.S. at 475. 6 Accordingly, Defendants have not met their burden of establishing removal 7 ||jurisdiction. Because the notice of removal fails to establish federal jurisdiction, this 8 action is REMANDED to the Superior Court of the State of California for the County of 9 Diego. 10 IT ISSO ORDERED. 11 Dated: July 9, 2021 ufpee be 13 Hon@y. James Lorenz 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28