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)

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-