Piburn v. Levingston et al

Filing 7

ORDER: This action is remanded for lack of subject matter jurisdiction. The Clerk of the Court is directed to remand this action back to the Superior Court of Arizona in and for the County of Apache. IT IS FURTHER ORDERED that Defendants' Motions to Proceed In Forma Pauperis (Docs. 2 , 3 ) are denied as moot. Signed by Judge G Murray Snow on 11/21/2013. (ALS)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Patricia Piburn, No. CV-13-08271-PCT-GMS Plaintiff, 10 11 v. 12 ORDER Lynnell Levingston, et. al., 13 Defendants. 14 15 On November 13, 2013, Defendants Jonathan Patrick Alter and Lynnell 16 Levingston filed a notice of removal to this Court of case number CV-2011-237 from the 17 18 Superior Court of Arizona in and for the County of Apache. For the reasons set forth 19 below, this case is remanded to Apache County Superior Court. As a result of this 20 remand, the Applications to proceed in District Court Without Prepaying Fees or Costs 21 filed by both Alter (Doc. 2) and Levingston (Doc. 3) are moot, and are denied as such. 22 23 The Notice of Removal fails to establish that this Court has, or would have had, 24 jurisdiction over Plaintiff’s First Amended Complaint. (Doc. 1 Ex. 7 at pps. 63-69). 25 Federal courts are courts of limited jurisdiction; they have subject-matter jurisdiction 26 27 28 only over those matters specifically authorized by Congress or the Constitution. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). A party may remove an 1 2 action from state court only if the action could have been brought in the district court originally. Ramirez v. Fox Television Station, Inc., 998 F.2d 743, 747 (9th Cir. 1993). But 3 4 5 6 the party asserting federal jurisdiction has the burden of proof on a motion to remand to state court. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Further, the removal statute is strictly construed against removal jurisdiction. Id. (citing Emrich v. Touche 7 8 9 10 11 Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988)). There is a “strong presumption” against removal jurisdiction, and “[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.” Id. The Notice of Removal claims that this Court has jurisdiction both under federal 12 13 question and diversity jurisdiction. It is incorrect on both counts. In the Notice, the 14 removing Defendants assert that Defendant Levingston has a defense against some or all 15 of the claims that Plaintiff Piburn makes against her because the debts that are the subject 16 17 18 19 of the Amended Complaint were discharged in a federal bankruptcy proceeding. “Since Piburn, in the Complaint – is seeking damages arising from the CV 2008-267 case-debts that have been discharged in bankruptcy; it has become a Federal matter to be addressed 20 21 in Federal Court.” This assertion, however, is incorrect. While a discharge in a federal 22 bankruptcy proceeding could constitute a defense in whole or in part to Piburn’s claims, 23 the assertion of a federal defense to a state-law claim does not convert the state-law claim 24 into one “arising under” federal law for purposes of federal question jurisdiction. See 25 26 Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (discussing 27 the “well-pleaded complaint rule”). Therefore, the Court has no federal question 28 jurisdiction. See 28 U.S.C. § 1331 (conferring on federal courts subject-matter -2- 1 jurisdiction over cases arising under federal law). 2 To the extent that the Notice of Removal purports to invoke the Court’s diversity 3 4 5 6 jurisdiction under 28 U.S.C. § 1332, the requirements for diversity jurisdiction are also not satisfied. To invoke the Court’s diversity jurisdiction, a defendant must show both that none of the Defendants are residents of the same state as the Plaintiff, and that the 7 8 amount in controversy exceeds $75,000. See 28 U.S.C. § 1332 (setting forth requirements 9 for diversity jurisdiction). In the notice of removal, the removing Defendants set forth 10 that Defendant Alter is a resident of the state of California and hence not a resident of the 11 same state as Defendant Piburn. The suit however, is not brought only against Alter; it is 12 13 also brought against Levingston who is a resident of Apache County, The Levingston 14 Family Trust and the M & R Irrevocable Trust which is apparently the equitable owner of 15 a parcel of real estate in Apache County. Neither of the Removing Defendants in their 16 17 18 19 statement of jurisdiction that is required by 28 U.S.C. § 1446 set forth any credible basis on which this Court could find that it has diversity jurisdiction over the parties; this is especially true in light of what the voluminous litigation records, filed with the notice of 20 21 removal, reveal concerning the history and status of this litigation in state court. 22 IT IS THEREFORE ORDERED that this action is remanded for lack of subject 23 matter jurisdiction. The Clerk of the Court is directed to remand this action back to the 24 Superior Court of Arizona in and for the County of Apache. 25 26 /// 27 /// 28 /// -3- 1 2 IT IS FURTHER ORDERED that Defendants’ Motions to Proceed In Forma Pauperis (Docs. 2, 3) are denied as moot. 3 4 Dated this 21st day of November, 2013. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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