Bita Yamini v. Tina Bright et al

Filing 2

ORDER TO SHOW CAUSE by Magistrate Judge Alicia G. Rosenberg. Response to Order to Show Cause due by 1/4/2013. On December 20, 2012, Defendant Tina Bright, appearing pro se, lodged a Notice Of Removal (Notice). Defendant also filed a Request to Proce ed In Forma Pauperis. Defendant is therefore ORDERED TO SHOW CAUSE on or before January 4, 2013, why her Request to Proceed In Forma Pauperis should not be denied and why this action should not be remanded to state court based upon a lack of subject matter jurisdiction. Failure to timely file a response and declaration will result in denial of Defendant's in forma pauperis application and an order remanding the action to state court. (See Order for details.) (mp)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-10850-UA (DUTYx)

Title

Biti Yamini v. Tina Bright, et al.

Present: The
Honorable

Date

December 21, 2012

Alicia G. Rosenberg, United States Magistrate Judge

Marine Pogosyan

n/a

n/a

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiff:

Attorneys Present for Defendants:

None

None

Proceedings:

In Chambers: ORDER TO SHOW CAUSE

On December 20, 2012, Defendant Tina Bright,1 appearing pro se, lodged a Notice Of
Removal (“Notice”). Defendant also filed a Request to Proceed In Forma Pauperis.
The procedure for removal pursuant to 28 U.S.C. § 1441 is set out in 28 U.S.C. § 1446.
“A defendant or defendants desiring to remove any civil action from a State court shall file in the
district court . . . a notice of removal . . . containing a short and plain statement of the grounds
for removal.” 28 U.S.C. § 1446(a). However, a defendant may remove an action originally filed
in state court only if the case originally could have been filed in federal court. In re NOS
Commc’ns, 495 F.3d 1052, 1057 (9th Cir. 2007). The subject matter jurisdiction of the federal
courts is limited to those cases in which jurisdiction is authorized under either 28 U.S.C. § 1331
(“federal question” jurisdiction) or 28 U.S.C. § 1332 (“diversity” jurisdiction). Further, “[t]he
party seeking removal has the burden of establishing federal jurisdiction.” O’Halloran v.
University of Washington, 856 F.2d 1375, 1380 (9th Cir. 1988).
Here, Defendant seeks removal on the sole basis of federal question jurisdiction. (See
Notice at 2). To establish federal question jurisdiction under 28 U.S.C. § 1331, a party seeking
removal must make it “apparent from the face of the complaint either that (1) a federal law
creates the plaintiff’s cause of action; or (2) if a state law creates the cause of action, a federal
law that creates a cause of action is a necessary element of the plaintiff’s claim.” Virgin v.
County of San Luis Obispo, 201 F.3d 1141, 1142-43 (9th Cir. 2000). Defendant alleges that
federal question arises under the Fourteenth Amendment’s due process clause. (Notice at 2.)
However, Plaintiff does not allege any federal cause of action. (See Notice Ex. A, Complaint.)
Nor does it appear that federal law is a necessary element of Plaintiff’s claim. Thus, Defendant
has not alleged facts establishing the existence of a federal question on the face of the complaint.

1

There are two named defendants, Tina Bright and Mizan Bright.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-10850-UA (DUTYx)

Title

Date

December 21, 2012

Biti Yamini v. Tina Bright, et al.

It may be that Defendant is raising a defense based on federal law. However, “‘the
existence of a defense based upon federal law is insufficient to support jurisdiction.’” Hall v.
North American Van Lines, Inc., 476 F.3d 683, 687 (9th Cir. 2007) (quoting Wayne v. DHL
Worldwide Express, 294 F.3d 1179, 1183 (9th Cir. 2002)).
Accordingly, there appears to be no basis for federal jurisdiction and removal appears
improper.
Further, should the court lack jurisdiction over this matter, it would be inappropriate to
grant in forma pauperis status at this time. See, e.g., Minetti v. Port of Seattle, 152 F.3d 1113,
1114 (9th Cir. 1998). In a case removed from state court, a district court must remand the case
to state court if it appears at any time before final judgment that the district court lacks subject
matter jurisdiction. 28 U.S.C. § 1447(c).
Defendant is therefore ORDERED TO SHOW CAUSE on or before January 4, 2013,
why her Request to Proceed In Forma Pauperis should not be denied and why this action should
not be remanded to state court based upon a lack of subject matter jurisdiction.
Failure to timely file a response and declaration will result in denial of Defendant’s
in forma pauperis application and an order remanding the action to state court.

Initials of Preparer

CV-90 (06/04)

CIVIL MINUTES - GENERAL

mp

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